Author Archives: Gary McCurdy

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

Amelioration, Elements of crime, Standard of review, Sufficiency of and substantial evidence, Vicarious liability

Case 001124

Posted on by Gary McCurdy

Error and/or relief

We reverse the denial of the petition for recall of sentence under section 1172.6 and direct the trial court to consider the defendant’s youth at the time of the killing as a relevant factor in determining whether the defendant formed the requisite mental state to be convicted of aiding and abetting an implied malice murder.

First Holding:

The trial court found that the defendant directly aided and abetted an implied malice murder. To satisfy the actus reus for that theory of liability, the aider and abettor must, by words or conduct, aid the commission of the life-endangering act, not the result of that act. The relevant act is the act that proximately causes death.

The required mens rea is knowledge that the perpetrator intended to commit the act, intent to aid the perpetrator in the commission of the act, knowledge that the act is dangerous to human life, and acting in conscious disregard for human life.

Authority:

People v. Reyes (2023) 14 Cal.5th 981, 991

Second Holding:

Based on our review of the trial court’s written order denying resentencing, we conclude the trial court understood and applied the elements of directly aiding and abetting an implied malice murder. We therefore review its decision for substantial evidence.

In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.

We do not reweigh evidence or second-guess credibility determinations. We presume the existence of every fact the trier of fact could reasonably deduce from the evidence to support the judgment. To overturn a conviction based on insufficient evidence, it must clearly appear that upon no hypothesis whatever is there sufficient substantial evidence to support it.

Authority:

People v. Bolin (1998) 18 Cal.4th 297, 331

People v. Ramirez (2022) 13 Cal.5th 997, 1118

People v. Redmond (1969) 71 Cal.2d 745, 755

Third Holding:

The defendant asserts that the trial court failed to consider his youth when deciding the resentencing petition. He did not raise the issue in the trial court, arguably forfeiting the issue. But we agree that considering the issue on the merits is appropriate where this emerging area of the law was only developing at the time the trial court denied the petition.

In Pittman, for example, the defendant argued for the first time on appeal after the denial of resentencing that his youth (21 years old at the time of the offense) was relevant to whether he acted with implied malice and therefore could be found guilty of second degree murder. The appellate court observed that the policy interests underlying the felony-murder cases—that youth is relevant to a criminal defendant’s ability to perceive risk and consequences, and therefore to the level of culpability—apply equally in the context of implied malice murder.

The Pittman court further concluded that failure to consider Pittman’s youth was not harmless, given trial evidence of Pittman and his peers acting impulsively and under the influence of transient rashness.

Authority:

People v. Pittman (2023) 96 Cal.App.5th 400, 416, 418 [Cases discussing the role of youth in relation to criminal culpability stress two areas: youthful offenders’ relative impulsivity and their vulnerability to peer pressure]

Fourth Holding:

The defendant was 20 years old at the time of the crime. Impulsivity and vulnerability to peer pressure may have contributed to his participation in the unplanned group attack of a rival gang member. We find it is reasonably probable a more favorable result would have been reached on the defendant’s petition had the trial court considered his youth.

Authority:

People v. Pittman (2023) 96 Cal.App.5th 400, 417 (applying the Watson standard)

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

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

Case 001123

Posted on by Gary McCurdy

Error and/or relief

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

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

First Holding:

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

Authority:

PEN 1001.36

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

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

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

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

Second Holding:

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

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

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

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

Authority:

PEN 1001.36(b)

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

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

Third Holding:

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

(1) a qualified mental health expert concludes the defendant’s mental disorder would respond to treatment;

(2) the defendant consents to diversion and agrees to waive his or her speedy trial rights;

(3) the defendant agrees to comply with treatment; and

(4) if treated in the community, the defendant will not pose an “unreasonable risk of danger to public safety,” as defined in section 1170.18.

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

Authority:

PEN 1001.36(c)

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

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

Fourth Holding:

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

Authority:

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

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

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

Fifth Holding:

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

Authority:

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

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

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

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

Discretion

Case 001122

Posted on by Gary McCurdy

Error and/or relief

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

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

First Holding:

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

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

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

Authority:

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

Second Holding:

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

Authority:

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