Author Archives: Gary McCurdy

Abstracts and Minutes

Case 000918

Posted on by Gary McCurdy

Error and/or relief

Following the invitation by the defendant to recall his sentence under section 1170.1, the trial court did recall his sentence and resentenced him to a considerably lesser number of years, but still more than 50 years to life. We affirm the trial court’s resentencing decision, with directions to make a correction to the record.

The trial court appropriately and correctly recalculated his credit for time served, but the abstract of judgment fails to reflect the recalculation. 

Holding:

We direct the trial court on remittitur to amend and forward to the Department of Corrections and Rehabilitation (CDCR) the abstract of judgment to reflect more than 10,000 days of actual credit and conduct credit that the trial court determined defendant was entitled to as of the resentencing date.

[Gary note: The court does not list any authority for ordering correction of the abstract of judgment, most likely because the authority is so obvious. But for your convenience, I have listed some of the cases that the court could have cited.]

Authority:

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

People v. Delgado (2008) 43 Cal.4th 1059, 1070

People v. Leon (2020) 8 Cal.5th 831, 855

In re Black (1967) 66 Cal.2d 881, 890

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

People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2

Eighth Amendment, Fines and fees, Sentencing, Statutory interpretation

Case 000917

Posted on by Gary McCurdy

Error and/or relief

We are not convinced that section 1202.4 is facially unconstitutional, but we will remand this matter to the trial court to give the defendant an opportunity to bring an as-applied challenge to the restitution fine under the excessive fines clauses of the Eighth Amendment and California Constitution.

First Holding:

Section 1202.4(b) requires that in every case where a person is convicted of a crime, the court shall impose a separate and additional restitution fine, unless it finds compelling and extraordinary reasons for not doing so and states those reasons on the record. For a felony, the minimum fine is $300 and the maximum is $10,000. Fines for a misdemeanor range from $150 to $1000.

The court shall impose the restitution fine unless it finds compelling and extraordinary reasons for not doing so and states those reasons on the record.

A defendant’s inability to pay shall not be considered a compelling and extraordinary reason not to impose a restitution fine. Inability to pay may be considered only in increasing the amount of the restitution fine in excess of the minimum fine pursuant to paragraph (1) of subdivision (b).

Authority:

PEN 1202.4(b)

Second Holding:

Due process did not require an ability to pay hearing before imposing every punitive fine. Kopp instructed instead that the excessive fines analysis, which considers ability to pay, is the proper vehicle to challenge punitive fines. The excessive fines analysis arises under the Eighth Amendment to the United States Constitution and article I, section 17 of the California Constitution.

Authority:

U.S. Const. Eighth Amendment

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

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

Third Holding:

Following Bajakajian, our Supreme Court in Lockyer stated that 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.

Kopp observed that a fine is excessive only if it is grossly disproportional to the gravity of the offense that it punishes, a deferential standard that recognizes that the Legislature makes judgments in the first instance about the appropriate punishment for offenses and judicial determinations of the gravity of a particular criminal offense are inherently imprecise.

Kopp remanded to give the defendant the opportunity to raise such a challenge.

Authority:

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

People v. Kopp (2025) 19 Cal.5th 1, 23-24

Fourth Holding:

A statute will be interpreted to avoid serious constitutional questions if such an interpretation is fairly possible. It would be remarkable and plainly unconstitutional for the Legislature to prohibit a trial court from considering a defendant’s invocation of a constitutional right.

We will therefore not construe section 1202.4 as preventing defendants from raising an excessive fines challenge to the minimum fine. Instead, we read the statute as simply establishing that as a statutory matter in the absence of an excessive fines challenge, a trial court cannot refrain from imposing the minimum $300 restitution fine based on a defendant’s inability to pay alone.

This is congruent with Kopp and excessive fines analysis jurisprudence, which considers a defendant’s ability to pay as one of four relevant factors, not as dispositive on its own.

Authority:

People v. Buza (2018) 4 Cal.5th 658, 682

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

People v. Aviles (2019) 39 Cal.App.5th 1055, 1070 [While ability to pay may be part of the proportionality analysis, it is not the only factor.]

People v. Kopp (2025) 19 Cal.5th 1, 23 [citing Aviles with approval]

Fifth Holding:

Neither the defendant nor the trial court had the benefit of Kopp when the defendant was sentenced, so she did not present her challenge to the restitution fine through the proper excessive fines analysis that Kopp makes clear is appropriate.

Accordingly, as Kopp itself did, we will remand this matter to the trial court to give the defendant the the opportunity to assert the legal analyses applicable to such a challenge and argue how the particular facts of this case inform such an inquiry.

Authority:

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

Appellate Principles, Discretion, Racial Justice Act, Standard of review

Case 000916

Posted on by Gary McCurdy

Error and/or relief

The defendant filed a habeas corpus petition in the superior court, alleging that his 1992 convictions for first degree murder and robbery were obtained “on the basis of race, ethnicity, or national origin” in violation of the California Racial Justice Act of 2020 (RJA). He also requested, pursuant to the RJA, appointment of counsel and disclosure of evidence to support his claims.

The trial court denied the discovery request and the habeas petition, concluding that the defendant failed to establish a prima facie case for relief under the RJA.

The court erred. We grant the petition and issue a writ of mandate directing the trial court to vacate its order denying the habeas petition, appoint counsel for the defendant, and conduct a new hearing to reconsider his discovery request in a manner consistent with this opinion.

(Gary note: The court outlined in several paragraphs the specific allegations the defendant set forth in his petition that, if true, arguably demonstrated that his arrest and prosecution were affected by factors disallowed by the RJA. As these summaries are designed to highlight principles and the cases or statutes supporting the principles, I am not going to include the facts of the case on which the appellate court concluded that the defendant had demonstrated a sufficient showing to warrant appointment of counsel and discovery.)

First Holding:

Ordinarily, mandate does not lie to correct judicial errors by the superior court in habeas corpus proceedings.

However, where, as here, the trial court failed to perform its required duty to conduct an independent assessment of whether the petitioner was entitled to have counsel appointed under newly adopted procedures enacted by the Legislature, then mandate may be used to compel the performance of that duty.

Authority:

McIntosh v. Superior Court (2025) 110 Cal.App.5th 33, 46-47

Second Holding:

Several have concluded that writ review of the trial court’s discovery rulings in RJA cases is appropriate because such rulings involve novel legal issues of widespread interest.

The RJA is a recent legislation that has been amended multiple times since its inception, and although its command is simple, its implementation is somewhat complex.

We therefore agree with the court in Young that exercising our discretion to review discovery rulings under the RJA is appropriate to provide general guidelines for future cases.

(Gary note:  I find that last sentence regarding guidelines for future cases a bit amusing, because this is an unpublished opinion, and the only “future case” it will ever affect is THIS particular defendant’s instant case.  But hey.  Maybe the “to publish or not to publish” colloquy occurred after the opinion was written.)

Authority:

Young v. Superior Court (2022) 79 Cal.App.5th 138, 147, 156

Gonzales v. Superior Court (2024) 108 Cal.App.5th Supp. 36, 53-54

McDaniel v. Superior Court (2025) 111 Cal.App.5th 228, 238

Third Holding:

Because management of discovery lies within the sound discretion of the trial court, we review discovery rulings for abuse of discretion. We review the factual underpinnings of a discretionary determination for substantial evidence, but where such a determination rests on incorrect legal premises, our review is de novo.

A discretionary order based on an application of improper criteria or incorrect legal assumptions is not an exercise of informed discretion and is subject to reversal.

Authority:

Young v. Superior Court (2022) 79 Cal.App.5th 138, 156

Gonzales v. Superior Court (2024) 108 Cal.App.5th Supp. 36, 55

Fourth Holding:

Effective January 1, 2021, the Legislature enacted the RJA (AB 2542 (2019–2020 Reg. Sess.)) to eliminate racial bias from California’s criminal justice system; to ensure that race plays no role at all in seeking or obtaining convictions or in sentencing; and to ensure that individuals have access to all relevant evidence, including statistical evidence, regarding potential discrimination in seeking or obtaining convictions or imposing sentences.

To achieve these objectives, the RJA added and amended Penal Code sections to allow defendants whose judgments are final or who are no longer in custody, respectively, to seek relief for RJA violations.

Authority:

PEN 745

PEN 1473

PEN 1473.7

In re Lynex (2026) 118 Cal.App.5th 756, 767

People v. Wilson (2024) 16 Cal.5th 874, 945

Fifth Holding:

The RJA provides that the state shall not seek or obtain a criminal conviction or seek, obtain, or impose a sentence on the basis of race, ethnicity, or national origin. The statute further sets forth four categories of conduct, any of which, if proved, is enough to establish a violation of the RJA.

Authority:

PEN 745(a)

Sixth Holding:

The court shall appoint counsel if the petitioner cannot afford counsel and the petition alleges facts that would establish a violation of section 745(a). In AB 1071, the Legislature reaffirmed that this threshold is extremely low. (Stats. 2025, ch. 721, sec. 1, subd. (b).)

AB 1071 states that courts have imposed on RJA petitioners higher burdens than the Legislature intended to meet the threshold to secure counsel and denied counsel to litigants raising RJA claims far more than they have appointed counsel.

The new legislation clarifies that the court shall appoint counsel to all indigent postconviction litigants who allege a plausible claim of an RJA violation, which does not require a prima facie showing and should be construed as a minimal pleading requirement.

Authority:

PEN 1473(e)(5)

McIntosh v. Superior Court (2025) 110 Cal.App.5th 33

Seventh Holding:

The RJA defines a prima facie showing to mean that the defendant produces facts that, if true, establish that there is a substantial likelihood that a violation of the RJA occurred.

By contrast, to be entitled to counsel in RJA habeas proceedings, petitioners are required only to allege facts that would establish a violation of the RJA.

Authority:

PEN 745(h)(2)

McIntosh v. Superior Court (2025) 110 Cal.App.5th 33, 45

Eighth Holding:

Regarding the showing necessary for discovery, 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.

The burden at the discovery stage is a good cause showing, the burden at the prima facie stage is higher, and the burden at the evidentiary hearing is higher still—proof of an RJA violation by a preponderance of the evidence.

As the least onerous of the statute’s burdens of proof, the plausible justification standard should not be difficult to meet. Where the defendant makes a showing of plausible justification that there was or could have been a violation of the RJA, thus triggering access to all relevant evidence concerning a potential violation of section 745(a), it will likely be an abuse of discretion to totally foreclose discovery.

Authority:

PEN 745(c), (d), and (e)

Young v. Superior Court (2022) 79 Cal.App.5th 138, 159, 168-169

Gonzales v. Superior Court (2024) 108 Cal.App.5th Supp. 36, 61

Ninth Holding:

At the discovery stage, as at the prima facie stage, the court should not weigh the evidence or make credibility determinations, except in the rare case where the record irrefutably establishes that the allegations are false.

Authority:

Finley v. Superior Court (2023) 95 Cal.App.5th 12, 23–24

McDaniel v. Superior Court (2025) 111 Cal.App.5th 228, 246, fn. 8 [A trial court’s review of supporting evidence at the discovery stage, which imposes even a lower burden of proof on defendants than the prima facie stage, must be more lenient]

Tenth Holding:

Although the defendant has offered sufficient evidence to demonstrate a plausible factual foundation for discovery under the RJA, a question remains regarding the appropriate scope of his request.

When determining if a petitioner is entitled to the requested discovery, the court must still consider and balance the so-called Alhambra factors:

(1) whether the material requested is adequately described;

(2) whether the requested material is reasonably available to the governmental entity from which it is sought (and not readily available to the defendant from other sources);

(3) whether production of the records containing the requested information would violate (i) third party confidentiality or privacy rights or (ii) any protected governmental interest;

(4) whether the defendant has acted in a timely manner;

(5) whether the time required to produce the requested information will necessitate an unreasonable delay of the defendant’s trial; and

(6) whether the production of the records containing the requested information would place an unreasonable burden on the governmental entity involved.

Authority:

City of Alhambra v. Superior Court (1988) 205 Cal.App.3d 1118, 1134

Eleventh Holding:

In addition, the court must consider whether the requests for disclosure may give rise to relevant evidence, meaning that the court must determine whether they are reasonably calculated to lead to discovery of admissible evidence probative of a section 745(a) violation.

The trial courts in exercising their discretion should keep in mind that the Legislature has suggested that, where possible, the courts should impose partial limitations rather than outright denial of discovery.

Authority:

McDaniel v. Superior Court (2025) 111 Cal.App.5th 228, 248

Williams v. Superior Court (2017) 3 Cal.5th 531, 559

Discretion, Sentencing

Case 000915

Posted on by Gary McCurdy

Error and/or relief

The trial court’s finding that he was unsuitable for diversion is unsupported by substantial evidence. We direct the trial court to vacate the order denying the defendant’s motion for mental health diversion and to enter a new order granting the motion unless there is evidence of changed circumstances that provide a basis for denying the motion consistent with this opinion. If the court finds changed circumstances, it shall hold a further hearing on the defendant’s motion for mental health diversion.

First Holding:

Section 1001.36 gives trial courts the discretion to grant pretrial diversion for individuals suffering from certain mental health disorders. The primary purposes of the legislation are to keep people with mental disorders from entering and reentering the criminal justice system while protecting public safety, to give counties discretion in developing and implementing diversion across a continuum of care settings, and to provide mental health rehabilitative services.

Authority:

PEN 1001.36

PEN 1001.35(a)-(c)

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

People v. Doron (2023) 95 Cal.App.5th 1, 7

Second Holding:

Section 1001.36(b) provides that a defendant is eligible for pretrial diversion if two criteria are met.

First, the defendant has been diagnosed with a mental disorder, such as the one with which defendant was diagnosed, within the last five years by a qualified mental health expert.

Second, the defendant’s mental disorder was a significant factor in the commission of the charged offense.

If the defendant has been diagnosed with a mental disorder, 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

Third Holding:

If a defendant meets these eligibility requirements, the defendant is suitable for pretrial diversion if four criteria are satisfied:

(1) In the opinion of a qualified mental health expert, the defendant’s symptoms of the mental disorder causing, contributing to, or motivating the criminal behavior would respond to mental health treatment.

(2) The defendant consents to diversion and waives the defendant’s right to a speedy trial.

(3) The defendant agrees to comply with treatment as a condition of diversion.

(4) 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(c)

Fourth Holding:

The proper inquiry for determining whether the fourth criterion is satisfied is whether there is an unreasonable risk the defendant will commit a super strike if treated in the community.

Super strikes include sexually violent offenses, child molestation, homicide, attempted homicide, solicitation to commit murder, assault with a machine gun on a peace officer or fire fighter, possession of a weapon of mass destruction, or a violent felony punishable by life imprisonment or death.

Authority:

PEN 1001.36(c)(4)

PEN 1170.18(c)

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

Fifth Holding:

Section 1001.36 provides the trial court with discretion to deny mental health diversion even if it finds a defendant meets the statutory eligibility and suitability criteria. Such discretion is commonly referred to as a court’s residual discretion.

Where the court chooses to exercise this residual discretion to deny diversion, its statement of reasons should reflect consideration of the underlying purposes of the statute and explain why diversion would not meet those goals.

Authority:

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

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

Sixth Holding:

We review a trial court’s ruling on a petition for pretrial mental health diversion for abuse of discretion.

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

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

Seventh Holding:

(Gary note: The court then described facts specific to this defendant this case that led it to the conclusion that the court abused its discretion in concluding the defendant posed an unreasonable risk of danger to the public safety. One of the elements of the trial court’s concern was the defendant’s need for medication. I have listed the authority cited by the court on that point, but I see no value in detailing the facts specific to this case.)

Authority:

Siam v. Superior Court (2026) 118 Cal.App.5th 67, 84, 87 [holding no substantial evidence supported denying diversion even though there were two instances of defendant declining treatment and the offense took place while defendant was being treated pursuant to diversion]

Vaughn v. Superior Court (2024) 105 Cal.App.5th 124, 136−137 [holding no substantial evidence that defendant was unsuitable for diversion even though defendant had sustained periods of psychotropic medication non-compliance and resisted talking about his mental health]

Abstracts and Minutes, Sentencing

Case 000914

Posted on by Gary McCurdy

Error and/or relief

After trial, the trial court issued a criminal protective order (CPO) barring the defendant from contacting his ex-wife and their two minor children. The CPO also included a pretrial order prohibiting him from dissuading the victim or witnesses from attending court hearings.

The order, however, left unselected an option that would allow exceptions for future juvenile, family, or probate court orders for the safe exchange of children and court-ordered visitation.

The CPO should not include the defendant’s children as protected parties, and it should not have included the pretrial provision regarding the dissuading of witnesses. The lack of any exceptions for future orders from other courts does not reflect the trial court’s oral ruling. We therefore partially vacate the CPO and modify it accordingly.

First Holding:

Criminal protective orders are governed by section 136.2; the trial court may issue a pretrial order under subdivision (a) of the statute, which does not survive after final judgment is rendered.

Authority:

PEN 136.2

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

Second Holding:

Section 136.2(i) authorizes posttrial orders if the defendant has been convicted of a qualifying offense, including those involving domestic violence. In a postconviction order, the court may bar the defendant from contacting a victim of the crime, or a percipient witness to the crime. The trial court issued the challenged CPO after trial. The trial court erred by entering a pretrial order.

Authority:

PEN 136.2(i)(1) and (i)(2)

People v. Lopez (2022) 75 Cal.App.5th 227, 236-237

People v. Walts (2025) 112 Cal.App.5th 127, 143

Third Holding:

The trial court should not have included the defendant’s children as protected parties under the CPO. The jury convicted walker of assault on his ex-wife, which is a qualifying domestic violence offense. However, nothing in the record indicates that the defendant’s children were victims or percipient witnesses of that crime. As such, there was no basis to include the defendant’s children as protected parties.

Authority:

PEN 136.2(i)(1)

FAM 13700(a) and (b).)

People v. Lopez (2022) 75 Cal.App.5th 227, 237 [children who were present during domestic violence event, but asleep, did not qualify as victims or percipient witnesses under sec. 136.2(i)]

Fourth Holding:

The trial court expressed its intention to let the family court deal with any potential exceptions to its no-contact order. However, the trial court did not select item 14(b), which would allow an exception for future orders from another court. The CPO therefore does not match the trial court’s stated ruling.

(Gary note: The court did not cite any authority for it order regarding modifying the CPO to permit another court to consider exceptions. When the abstract of judgment or minute order does not comport with the oral pronouncement, the court certainly has the power to make corrections. I have listed some cases on that point below, but keep in mind, they deal with abstracts of judgments and minute orders, not criminal protective orders. But remember that section 1260 grants the appellate courts very broad power to amend the judgment.)

Authority:

PEN 1260 [The court may reverse, affirm, or modify a judgment or order appealed from, or reduce the degree of the offense or attempted offense or the punishment imposed, and may set aside, affirm, or modify any or all of the proceedings subsequent to, or dependent upon, such judgment or order, and may, if proper, order a new trial and may, if proper, remand the cause to the trial court for such further proceedings as may be just under the circumstances.]

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

People v. Delgado (2008) 43 Cal.4th 1059, 1070

People v. Leon (2020) 8 Cal.5th 831, 855

In re Black (1967) 66 Cal.2d 881, 890

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

People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2