Author Archives: Gary McCurdy

Discretion, Standard of review, Sufficiency of and substantial evidence

Case 000825

Posted on by Gary McCurdy

Error and/or relief

We conclude the finding of unreasonable risk to public safety is not supported by substantial evidence and the trial court abused its discretion in finding the defendant unsuitable for diversion.

(Gary note: I have set out the various holdings and authorities below that represent the applicable law and principles, but I have not recited the court’s analysis of the facts in this case on which it based there was no substantial evidence to support the court’s conclusion that the defendant was a danger to the community. Suffice it to say, the appellate court found the court’s reasoning inadequate to support denial of the request for mental health diversion.)

First Holding:

Section 1001.36 authorizes courts to grant pretrial mental health diversion to defendants who meet six qualifying requirements. The stated purpose of the diversion statute is to promote all of the following: (a) Increased diversion of individuals with mental disorders to mitigate the individuals’ entry and reentry into the criminal justice system while protecting public safety. (b) Allowing local discretion and flexibility for counties in the development and implementation of diversion for individuals with mental disorders across a continuum of care settings. (c) Providing diversion that meets the unique mental health treatment and support needs of individuals with mental disorders.

If the defendant successfully completes diversion, including having in place a plan for long-term mental health care, the criminal charges shall be dismissed. However, if after diversion is granted, a qualified mental health expert concludes the defendant is performing unsatisfactorily in the assigned program, the court shall, after notice to the defendant, hold a hearing to determine whether criminal proceedings should be reinstated or treatment modified.

Authority:

PEN 1001.36

PEN 1001.35

People v. Williams (2021) 63 Cal.App.5th 990, 995

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

People v. Whitmill (2022) 86 Cal.App.5th 1138, 1149–1150

Second Holding:

Effective January 1, 2023, mental health diversion requires the trial court to find that the defendant is both eligible for diversion and suitable for the program. A defendant is eligible if they meet two criteria: first, the defendant must have been diagnosed with a mental disorder as identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders, within the last five years, by a qualified mental health expert.

Second, the disorder must be a significant factor in the commission of the charged offense. The court shall find that the defendant’s mental disorder was a significant factor in the commission of the offense unless there is clear and convincing evidence that it was not a motivating factor, causal factor, or contributing factor to the defendant’s involvement in the alleged offense.

Authority:

PEN 1001.36(b)

Third Holding:

This presumption cannot be overcome by the mere absence of evidence demonstrating the defendant’s mental illness was a factor in the alleged offenses. If a mere absence of evidence were sufficient, the court would effectively be impermissibly shifting the burden to the defendant to affirmatively prove that his mental disorder contributed to the offenses.

Authority:

Lacour v. Superior Court (2025) 110 Cal.App.5th 391, 404

Gomez v. Superior Court (2025) 113 Cal.App.5th 671, 688–689

Fourth Holding:

If the defendant satisfies the statutory eligibility requirements, the court must then consider whether the defendant is suitable for pretrial diversion. The four criteria to assess suitability are grouped in section 1001.36, subdivision (c). As with the diagnosis eligibility requirement, the first of these relies on input from a medical professional, in this instance the opinion of a qualified mental health expert, that the symptoms of defendant’s mental disorder would respond to mental health treatment.

The second and third requirements are satisfied if the defendant agrees to waive their speedy trial rights and to comply with treatment as a condition of diversion. Only the fourth requirement necessitates a trial court finding, to wit, that the defendant will not pose an unreasonable risk of danger to public safety if treated in the community.

Authority:

PEN 1001.36(c)

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 892–894

Fifth Holding:

Even here, however, the Legislature has narrowly defined the applicable criteria. Borrowing from sections 1170.18(c) and 667(e)(2)(C)(iv), an unreasonable risk to public safety means a likelihood that the defendant will commit one of the violent felonies specifically enumerated in the statute.

The listed felonies are colloquially known as “super strikes.” Super strikes are a narrowly drawn subset of violent felonies involving extreme violence. We note that the lack of a criminal record is strong evidence that a defendant is unlikely to commit a future super strike offense.

Authority:

PEN 1001.36(c)(4)

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

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

People v. Moine (2011) 62 Cal.App.5th 440, 450

People v. Hoffman (2015) 241 Cal.App.4th 1304, 1310

Sixth Holding:

Assuming the defendant is both eligible and suitable, the trial court must also be satisfied that the recommended inpatient or outpatient program of mental health treatment will meet the specialized mental health treatment needs of the defendant. This is not an additional eligibility or suitability requirement the defendant must meet. Rather, section 1001.36(f)(1) read as a whole appears to contemplate an ongoing assessment to assure that defendant will receive appropriate treatment for their particular conditions as part of the diversion program.

Authority:

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

People v. Gerson (2022) 80 Cal.App.5th 1067, 1079

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

Seventh Holding:

Finally, even if a defendant has made a prima facie showing that all the express statutory eligibility and suitability requirements are met, the court may still exercise its discretion to deny diversion. But this residual discretion is not unfettered; it must be exercised consistent with the principles and purpose of the governing law. Where the court chooses to exercise that 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 these goals.

Authority:

People v. Qualkinbush (2022) 79 Cal.App.5th 879, 891

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

Eighth Holding:

We review the trial court’s factual findings as to the enumerated statutory criteria for substantial evidence. Under this deferential standard of review, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends.

Authority:

People v. Gerson (2022) 80 Cal.App.5th 1067, 1079

Ninth Holding:

We review the trial court’s ultimate decision whether to grant mental health diversion for an abuse of discretion. By its terms, section 1001.36 is designed to encourage trial courts to broadly authorize pretrial mental health diversion, providing treatment for qualifying mental disorders that result in criminal behavior. As with any principled exercise of discretion, the court must utilize the appropriate criteria consistent with the principles and purposes of the governing law, only drawing conclusions supported by substantial evidence.

Authority:

People v. Gerson (2022) 80 Cal.App.5th 1067, 1080

Appellate Principles, Elements of crime, Jury trial

Case 000824

Posted on by Gary McCurdy

Error and/or relief

The conviction on count 2 must be reversed because it is a lesser included offense of count 1.

First Holding:

The law prohibits simultaneous convictions for both a greater offense and a lesser offense necessarily included within it, when based on the same conduct. When the jury expressly finds defendant guilty of both the greater and lesser offense the conviction of the greater offense is controlling, and the conviction of the lesser offense must be reversed.

Authority:

People v. Milward (2011) 52 Cal.4th 580, 589

Second Holding:

Assault with a firearm is a lesser included offense of assault with a semi-automatic firearm. Accordingly, the defendant’s conviction for assault with a firearm must be reversed

Authority:

People v. Martinez (2012) 208 Cal.App.4th 197, 199

Sentencing

Case 000823

Posted on by Gary McCurdy

Error and/or relief

It was error to stay the sentence on the use of firearm enhancement and the prior serious felony in an effort to show leniency. The proper procedure requires the court to strike them, not stay them.

Holding:

The trial court imposed and stayed both the remaining section 12022.53(b) and (c) firearm enhancements as to counts 1 and 2, and the serious felony prior enhancement as to count 2. This was an unauthorized sentence. The record indicates that the trial court did not intend to punish the defendant for these additional enhancements. Because a trial court has no authority to stay an enhancement based on its discretion, the court imposed a legally unauthorized sentence. We exercise our authority under section 1260 to modify the judgment by striking this unauthorized sentence.

Authority:

PEN 1260

People v. Bay (2019) 40 Cal.App.5th 126, 139 [The trial court has no authority to stay an enhancement, rather than strike it—not, at least, when the only basis for doing either is its own discretionary sense of justice.]

Amelioration, Sentencing

Case 000822

Posted on by Gary McCurdy

Error and/or relief

On the defendant’s resentencing hearing under section 1172.75, the court erroneously denied the defendant’s petition, concluding that he was not eligible because the now-invalid enhancement for a prior prison term had been imposed but stayed.

Holding:

While this appeal was pending, the Supreme Court issued its opinion in Rhodius, in which it held that a person whose sentence included a now-invalid enhancement for a prior prison term is eligible for resentencing under section 1172.75, even if the enhancement was stayed at the initial sentencing.

Authority:

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

Abstracts and Minutes

Case 000821

Posted on by Gary McCurdy

Error and/or relief

The sentencing minute order and the abstract of judgment do not accurately reflect the court’s oral pronouncement of the defendant’s sentence. We direct the court to correct the minute order and the abstract of judgment.

Holding:

The court ordered concurrent sentences for the two counts. The sentencing minute order erroneously states that the sentences on the two counts are consecutive. The minute order overstates the length of the determinate term for the enhancement. The abstract of judgment also fails to indicate the sentence that was pronounced for count 1. The court must correct the minute order and abstract of judgment to conform to the oral pronouncement of judgment.

Authority:

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

Eighth Amendment, Fines and fees, Sentencing

Case 000820

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in ordering defendant to pay ancillary costs and to reimburse the police department for the SART [Sexual Assault Response Team] examination costs without considering his ability to pay and while the amount of victim reimbursement had yet to be determined. Accordingly, we reverse the judgment and remand for further proceedings consistent with this opinion.

First Holding:

Because defendant did not obtain a certificate of probable cause, our review is limited to issues occurring after entry of the plea that do not affect its validity.

Authority:

PEN 1237.5

Cal. Rules of Court, rule 8.304(b)(3)

People v. Mendez (1999) 19 Cal.4th 1084, 1096

Second Holding:

While this appeal was pending, our Supreme Court decided Kopp, which held that (1) a defendant may challenge the imposition of a punitive fine (e.g., restitution fines under Penal Code section 1202.4) under the excessive fines provisions of the United States and California Constitutions; and (2) equal protection principles require a court, upon request, to consider a defendant’s ability to pay before imposing ancillary costs (e.g., court facilities fees under Government Code section 70373 and court operations fees under section 1465.8).

Because defendant did not have the benefit of Kopp’s specific reasoning at the time of his sentencing, we conclude he must be afforded the opportunity to assert an excessive fine objection and develop a factual record on the considerations relevant to that claim.

Authority:

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

Third Holding:

The touchstone of the excessive fines inquiry is the principle of proportionality: The amount of the forfeiture must bear some relationship to the gravity of the offense that it is designed to punish.

Four considerations inform that inquiry: (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:

People v. Kopp (2025) 19 Cal.5th 1, 23

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

Fourth Holding:

As for the $30 court operations fee and the $40 court facilities fee, Kopp held that, in light of the Legislature’s provision of fee waivers to indigent civil litigants, equal protection principles require a court, upon request, to consider a defendant’s inability to pay before imposing ancillary costs in criminal cases.

Authority:

People v. Kopp (2025) 19 Cal.5th 1, 31

Fifth Holding:

Here, the trial court erroneously denied defense counsel’s request for an ability to pay hearing. Although some courts have found such error harmless where the record otherwise reflects the defendant’s earning capacity, we decline to do so here, as the People do not contend the record is sufficient to make such a determination in this case.

Furthermore, an ability to pay hearing is also required under section 1203.1h [regarding the cost of medical examinations incurred by law enforcement for the collection and preservation of evidence in sexual assault cases].

Authority:

PEN 1203.1h(b)

People v. Aviles (2019) 39 Cal.App.5th 1055, 1075–1077

People v. Johnson (2019) 35 Cal.App.5th 134, 139–140

Effective assistance of counsel, Sentencing, Standard of review

Case 000819

Posted on by Gary McCurdy

Error and/or relief

(Gary note: This opinion actually contained no relief for the defendant because there was no harm, therefore no foul. I.e., Harmless error. But I have included for some important principles that the defendant prevailed on, save the need to show prejudice.)

The firearm and great bodily injury findings on the defendant’s murder convictions must be reversed, though it does not affect his sentence because the court did not impose sentence on those enhancements. His counsel was ineffective for failing to object to the dual use of facts at sentencing, but the error was harmless because the court cited and relied on several other properly established factors in aggravation and made it clear that the court intended to impose the upper term.

First Holding:

The jury found the defendant personally inflicted great bodily harm within the meaning of section 12022.7(a) when he committed each of the counts of murder. But section 12022.7 specifically states that it does not apply to the crime of murder. We reverse those findings, but the sentence remains unaffected because the court did not impose punishment for those enhancements.

Authority:

PEN 12022.7(g)

Second Holding:

To prevail on a claim of ineffective assistance of counsel, the defendant must show that his counsel’s performance was deficient, and that the deficiency prejudiced the defense. On direct appeal, a finding of deficient performance is warranted where (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation.

Where counsel’s trial tactics or strategic reasons for challenged decisions do not appear on the record, we will not find ineffective assistance of counsel on appeal unless there could be no conceivable reason for counsel’s acts or omissions.

Authority:

People v. Johnsen (2021) 10 Cal.5th 1116, 1165

Third Holding:

A trial court may not impose an upper term by using the fact of any enhancement upon which sentence is imposed under any provision of law.

We agree with the defendant that there is no conceivable reason for his counsel to have failed to raise this point in the trial court.

The law prohibiting the dual use of facts for an enhancement and to aggravate a sentence is clear, and the People do not dispute that it barred the court from relying on the firearm and great bodily injury aggravating circumstances to impose the upper term on count 10. The defendant had nothing to lose by raising this point and could only face a longer sentence by allowing the court to consider more aggravating circumstances than were proper.

Authority:

PEN 1170(b)(5)

Rules of Court, rule 4.420(g)

People v. Scott (1994) 9 Cal.4th 331, 350

Fourth Holding:

Establishing prejudice for a claim of ineffective assistance of counsel requires a defendant to demonstrate a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.

The defendant fails to establish prejudice because the record clearly indicates that the trial court could and would have imposed the same sentence even without the additional aggravating circumstances. A trial court may impose an upper-term sentence based on even a single aggravating factor.

Because the trial court made every possible choice to lengthen the term of the defendant’s sentence, well beyond the limit of what the defendant could be physically capable of serving [more than 200 years], the trial court left no doubt that it would have imposed the same upper term on count 10 even without two of the aggravating circumstances.circumstance.

Authority:

In re Gay (2020) 8 Cal.5th 1059, 1086

People v. Lynch (2024) 16 Cal.5th 730, 764

Sentencing, Sixth Amendment, Standard of review

Case 000818

Posted on by Gary McCurdy

Error and/or relief

The trial court impermissibly and prejudicially relied on aggravating factors not found true by a jury to sentence the defendant to the upper term on the assault count. The defendant is also entitled to conduct credts in addition to his actual presentence time in custody.

First Holding:

The People presented certified documents of five prior felony convictions. The certified documents showed that appellant had served a prison term for the 2002 convictions. The trial court found the People proved two aggravating factors beyond a reasonable doubt: that appellant’s prior convictions were numerous or of increasing seriousness, and that appellant had served a prior prison term. At sentencing, the trial court relied on these two factors in imposing the upper term on the assault count.

This was error, as the proposed aggravating factors should have been presented to a jury for proof beyond a reasonable doubt, if not stipulated to by the defendant.

Under the federal constitution, 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.

When the constitutional right to jury trial is involved, there must be an express waiver. It is undisputed that appellant made no such express waiver in this case. When a defendant is deprived of a jury trial on aggravating facts used to justify imposition of an upper term sentence, the reviewing court must apply the Chapman standard of review.

Under that standard, a sentence imposed under section 1170(b) must be reversed and remanded unless the reviewing court concludes beyond a reasonable doubt that a jury, applying that same standard, would have found true all of the aggravating facts upon which the court relied to conclude the upper term was justified, or that those facts were otherwise proved true in compliance with the current statute.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1086, 1087

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

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

Second Holding:

With respect to numerosity, appellant was convicted of five offenses over a period of 18 years, with an additional 22 years elapsing between the most recent prior offense and the instant offense. Appellant was [more than 60] years old at the time of trial. We cannot conclude beyond a reasonable doubt that a jury would have found appellant’s prior crimes numerous.

While the evidence may have been sufficient to support a finding that the aggravating factor was true, that is not the proper inquiry when assessing prejudice under Chapman. Instead, we must ask whether any rational fact finder could have come to the opposite conclusion.

Authority:

People v. Wright (2025) 113 Cal.App.5th 832, 848 [Three robberies in the course of 49 years of life may strike some jurors as an obviously numerous number of convictions, but we are unsure 12 people unanimously would agree with this evaluation beyond a reasonable doubt]

People v. Wiley (2025) 17 Cal.5th 1069, 1090

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

Third Holding:

As for increasing seriousness, under current case law, the determination that a defendant’s prior convictions are of increasing seriousness may be made by reference to the range of punishment provided by statute for each offense. Or it may be determined by a comparison of the offenses respective elements.

While a jury certainly could find increasing seriousness, we are not persuaded beyond a reasonable doubt that they would have, particularly in light of our Supreme Court’s recent caution regarding increasing seriousness that the determination is a comparative and qualitative one. These realities make it difficult for a reviewing court to conclude with confidence that, had the issue been submitted to the jury, the jury would have assessed the facts in the same manner as did the trial court.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1090

Fourth Holding:

The defendant is entitled to 166 days of presentence conduct credit in addition to the 167 days of actual credit awarded by the trial court.

Authority:

PEN 4019(f)

Racial Justice Act

Case 000817

Posted on by Gary McCurdy

Error and/or relief

Though brought as an appeal, the appellate court exercised its discreation and treated the matter as a petition for writ of mandate, the proper vehicle to challenge an order denying the defendant’s motion for discovery under the Racial Justice Act [RJA], as the order was an interlocutory, nonappealable order. We grant the petition.

First Holding:

The petitioner is only authorized to bring an RJA claim by way of a petition for writ of habeas corpus because he is incarcerated and his judgment is already final. Petitioner has not filed such a petition.

Authority:

PEN 745

PEN 1473

People v. Hodge (2024) 107 Cal.App.5th 985, 999–1000

People v. Serrano (2024) 106 Cal.App.5th 276, 292–293

In re Montgomery (2024) 104 Cal.App.5th 1062, 1070–1072, review granted Dec. 11, 2024, S287339

Second Holding:

Until recently, appellate courts were divided over whether courts have jurisdiction to rule on a postjudgment RJA discovery motion unattached to a petition for writ of habeas corpus. This dispute, however, was resolved when the Legislature enacted AB 1071 (2025–2026 Reg. Sess.), effective January 1, 2026, which added Penal Code section 1473,(e)(2).

This new provision expressly authorizes a petitioner, or their counsel, to file a discovery motion under section 745(d), upon the prosecution of a petition under this subdivision, or in preparation to file a petition.

Authority:

PEN 745(d)

PEN 1473(e)(2)

People v. Serrano (2024) 106 Cal.App.5th 276, 291

Third Holding:

The trial court’s erroneous denial of petitioner’s discovery motion, as an interlocutory order, is not appealable and is challengeable only by petition for writ of mandate. We exercise our discretion to treat the appeal as a petition for writ of mandate, as both parties have thoroughly briefed the merits of the petitioner’s claim of right to discovery under the RJA.

Authority:

People v. Serrano (2024) 106 Cal.App.5th 276, 292-293

Gonzales v. Superior Court (2024) 108 Cal.App.5th Supp. 36, 53–54 [Writ review is appropriate in discovery matters where, as here, it is necessary to address questions of first impression that are of general importance to the trial courts and to the legal profession, and where general guidelines can be laid down for future cases.]

Olson v. Cory (1983) 35 Cal.3d 390, 401 [treating an appeal as a writ petition is appropriate when an issue under review has been thoroughly briefed and argued, such that dismissing the appeal would be unnecessarily dilatory and circuitous]

Fourth Holding:

A petitioner seeking to pursue an RJA claim must show good cause to obtain discovery in anticipation of filing a petition for writ of habeas corpus. This good cause standard is more lenient than the prima facie showing required for obtaining relief under section 745(a). Nonetheless, the statute’s good cause language serves a gatekeeping function.

Authority:

PEN 745(d)

Young v. Superior Court (2022) 79 Cal.App.5th 138, 166 [whether the allegations underscoring [the petitioner’s racial profiling theory are enough to support a plausible justification that a violation of section 745(a) could or might have occurred in his or her case is an issue for the trial court to assess, exercising its discretion upon an application of the correct legal standard governing good cause]

In re Montgomery (2024) 104 Cal.App.5th 1062, 1075 [review granted Dec. 11, 2024, S287339] (conc. opn. of Kelety, J.) [Nor would an interpretation of section 745(d) that allows habeas corpus petitioners to obtain such discovery trigger a right to unlimited discovery]

People v. Serrano (2024) 106 Cal.App.5th 276, 293

Fifth Holding:

In Young, the appellate court concluded that the good cause standard for discovery under the RJA is akin to the good cause standard for Pitchess motions [pertaining to discovery of police personnel records in criminal cases]. It observed that the Pitchess good cause standard includes the requirement for a defendant to establish a plausible factual foundation for officer misconduct.

The Young court concluded that the same standard applies in RJA cases. In order to establish good cause for discovery under the RJA, a defendant is required only to advance a plausible factual foundation, based on specific facts, that a violation of the RJA could or might have occurred in his case.

Authority:

Young v. Superior Court (2022) 79 Cal.App.5th 138, 158-159

People v. Superior Court (Lalo) (2025) 114 Cal.App.5th 707, 712

McDaniel v. Superior Court (2025) 111 Cal.App.5th 228, 244

Pitchess v. Superior Court (1974) 11 Cal.3d 531

Sixth Holding:

Based on the evidence presented by the petitioner in his motion, we conclude that he met the foundational requirement of presenting a plausible justification for discovery under section 745(d).

Authority:

Young v. Superior Court (2022) 79 Cal.App.5th 138, 144-145

Seventh Holding:

It has long been the law that a criminal defendant who has established his indigent status is constitutionally entitled to those defense services for which he demonstrates a need, which services may include discovery costs, investigative costs, transcript costs, expert fees, etc.

In this matter, petitioner did not assert in the superior court a right to free copies of discovery materials with a demonstration of his indigent status. Unless or until petitioner does so, he is not entitled to free copies of any material discoverable under the RJA. [it does not offend the Constitution to require a nonindigent defendant to pay reasonable fees for duplicating discovery materials disclosed by the district attorney pursuant to section 1054.1]

Authority:

Schaffer v. Superior Court (2010) 185 Cal.App.4th 1235, 1245 [it does not offend the Constitution to require a nonindigent defendant to pay reasonable fees for duplicating discovery materials disclosed by the district attorney pursuant to section 1054.1]

Juveniles, Sentencing

Case 000816

Posted on by Gary McCurdy

Error and/or relief

Given that the minor was not removed from his home, it was error for the court to set the maximum term of confinement.

Holding:

When a minor is removed from the physical custody of a parent or guardian, a juvenile court must specify the maximum term of confinement. But the statute authorizes the juvenile court to specify the maximum confinement term only when a minor is removed from parental custody. Because the juvenile court did not remove the minor from his mother’s custody, the maximum confinement term should be stricken.

Authority:

WIC 726(d)(1)

In re Matthew A. (2008) 165 Cal.App.4th 537, 541

 

Discretion, Probation Parole PRCS, Sentencing, Standard of review

Case 000815

Posted on by Gary McCurdy

Error and/or relief

It was error to impose a condition of probation that the defendant must submit to chemical testing for the use of alcohol at any time as directed by probation officer or other law enforcement officer.

First Holding:

As an initial matter, we address and reject the Attorney General’s argument that the defendant’s failure to object to the alcohol testing condition forfeited the issue on appeal. Neither forfeiture nor application of the forfeiture rule is automatic, and appellate courts have discretion to review otherwise forfeited challenges. Here, we exercise our right to decide the appeal on its merits, in order to eliminate the need to address the defendant’s alternative ineffective assistance of counsel claim. We now turn to the reasonableness of condition

Authority:

People v. McCullough (2013) 56 Cal.4th 589, 593

In re Victor L. (2010) 182 Cal.App.4th 902, 928

Second Holding:

The defendant challenges the imposition of probation condition 13, which required him to submit to alcohol testing, as unreasonable under Lent. He contends the condition does not make sense because the trial court struck condition 12 that prohibited him from consuming or possessing alcohol.

Authority:

People v. Lent (1975) 15 Cal.3d 481

Third Holding:

We review conditions of probation for abuse of discretion. That is, a reviewing court will disturb the trial court’s decision to impose a particular condition of probation only if, under all the circumstances, that choice is arbitrary and capricious and is wholly unreasonable.

Authority:

People v. Olguin (2008) 45 Cal.4th 375, 379

People v. Moran (2016) 1 Cal.5th 398, 403

Fourth Holding:

A condition of probation will not be held invalid unless it ‘(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality. The Lent test is conjunctive—all three prongs must be satisfied before a reviewing court will invalidate a probation term.

The conditions of probation aimed at rehabilitating the offender need not be so strictly tied to the offender’s precise crime as long as they are reasonably directed at curbing an offender’s future criminality. But there must be a strong connection between the burdens imposed by the challenged condition and a probationer’s criminal conduct or personal history.

Authority:

People v. Lent (1975) 15 Cal.3d 481, 486

People v. Olguin (2008) 45 Cal.4th 375, 379

In re Ricardo P. (2019) 7 Cal.5th 1113, 1120

Fifth Holding:

Notably, when asked to strike the condition requiring the defendant to abstain from drinking alcohol, the sentencing court freely did so without any apparent reservation. This striking shows the court was not concerned that the defendant’s alcohol consumption had the potential for abuse or was likely to lead to future criminality.

As such, because the defendant was allowed to possess and consume alcohol, there was no rational need to test the defendant for alcohol consumption as a condition of probation. Therefore, we conclude the testing condition here has no deterrent effect on the defendant’s future criminality and is unreasonable.

Authority:

People v. Kiddoo (1990) 225 Cal.App.3d 922, 928, disapproved on other grounds in People v. Welch (1993) 5 Cal.4th 228, 236–237 [court struck a probation condition that appellant not possess or consume alcohol or frequent places where alcohol was sold because there was no factual indication in the record that the proscribed behavior is reasonably related to future criminal behavior]

Sixth Holding:

Because the court’s imposition of condition 13 was therefore an abuse of discretion, we order it stricken.

Authority:

In re Malik J. (2015) 240 Cal.App.4th 896, 901 [In an appropriate case, a probation condition that is not sufficiently precise or narrowly drawn may be modified in this court and affirmed as modified]

Sentencing, Sixth Amendment, Standard of review

Case 000814

Posted on by Gary McCurdy

Error and/or relief

The trial court prejudicially erred in imposing the upper term based on the aggravating circumstance that the defendant’s prior convictions as an adult or sustained petitions in juvenile delinquency proceedings are numerous or of increasing seriousness, without either a true finding by a jury or the defendant’s admission.

First Holding:

Section 1170(b)(2) provides that the trial court may impose a sentence exceeding the middle term only when aggravating circumstances justify imposition of an upper term sentence, and the facts underlying those circumstances have been stipulated to by the defendant or have been found true beyond a reasonable doubt at trial.

Authority:

PEN 1170(b)(2)

Second Holding:

This trial right is not merely a state law entitlement, but is constitutionally required. Under the Fifth and Sixth Amendments to the United States Constitution, any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence.

Authority:

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

People v. Lynch (2024) 16 Cal.5th 730, 755-767

Erlinger v. United States (2024) 602 U.S. 821, 834 [Virtually any fact that increases the prescribed range of penalties to which a criminal defendant is exposed must be resolved by a unanimous jury beyond a reasonable doubt (or freely admitted in a guilty plea).]

Third Holding:

The only exception to this rule is the fact of a prior conviction. A court may consider the defendant’s prior convictions in determining sentencing based on a certified record of conviction without submitting the prior convictions to a jury. Allegations of prior convictions may be tried by the court alone and proven by certified records of conviction. However, this exception is narrow. A judge may do no more, consistent with the Sixth Amendment, than determine what crime, with what elements, the defendant was convicted of.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1079, 1083, 1084 [any fact, beyond the bare fact of a prior conviction, that exposes a defendant to harsher punishment, must be found by a jury beyond a reasonable doubt, unless the defendant stipulates to its truth or waives a jury trial]

Apprendi v. New Jersey (2000) 530 U.S. 466, 490

People v. Lynch (2024) 16 Cal.5th 730, 742, 757 [Excluding properly proven prior convictions or a defense stipulation, a jury finding is now required for all facts actually relied on to impose an upper term.]

Erlinger v. United States (2024) 602 U.S. 821, 838

Fourth Holding:

Two aggravating factors under the rules of court—the increasing seriousness of a defendant’s prior convictions (rule 4.421(b)(2)) and unsatisfactory performance on probation (rule 4.421(b)(5))—involve something more than a narrow factual finding that the convictions were sustained and what elements were required to prove them. Accordingly, a defendant is entitled to a jury trial on those two factors before the factors can be used to justify an upper term sentence.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1082-1085

Fifth Holding:

When a defendant is deprived of a jury trial on aggravating facts used to justify imposition of an upper term sentence, the reviewing court must apply the standard of review under Chapman. Under that standard, a sentence imposed under section 1170(b) must be reversed and remanded unless the reviewing court concludes beyond a reasonable doubt that a jury, applying that same standard, would have found true all of the aggravating facts upon which the court relied to conclude the upper term was justified, or that those facts were otherwise proved true in compliance with the current statute.

Lack of a jury trial is not harmless under Chapman if the record contains evidence that could rationally lead to a contrary finding with respect to the aggravating fact at issue.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1087

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

Sixth Holding:

The facts supporting every aggravating circumstance upon which the trial court relies to justify imposition of the upper term must be properly proven.

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 757