This is really hard to see, but it is a mother opossum with at least six little possumettes clinging to her sides and back, captured in the wee hours by an infra-red trail camera. Very cool. I’d share the video but I’m not sure I can spare the space.
By the way, I’ve noticed that the system I’ve adopted for recording from the opinions the information I want to include in my posts results in several inconsistencies. As I have said before, I’m anonymizing all identities, and I think I’ve done that. But I see that sometimes I switch between a third party viewpoint (“The court stated xyz”) and the first person perspective the author of the appellate opinion (“We have determined that abc”). It’s a little easier for me to leave it in the opinion author’s first person than to go in and monkey around with the agreement of subject-verb in order to get “We …” to “The court ….” So I may experiment and be inconsistent until I’ve settled on what I feel most comfortable with. I also see that my copying and pasting and melding bits and pieces results in missing periods or multiple adjacent semicolons, and probably other little nuisance bits of detritus I’d rather not leave in but somehow didn’t notice on my first few edits. I’m hopeful that between now and when I formally roll out the website I will have ironed out the kinks. In the meantime, I appreciate your patience. (Not that anyone has actually run across my blog except maybe family, but hey, I can pretend you are out there listening to me raptly, no?)
By the way redux (and I should state this in a more permanent way that doesn’t disappear when this post is pushed off the page), I have concluded I will not entirely comply with the citation style dictated by the California Style Manual adopted by the California Supreme Court. Specifically, I have chosen not to italicize the case names (or any other words normally italicized per the Manual). Not that anyone will, but if someone WANTS to copy portions of the summaries to paste into some other archive maintained by the person, I want it to be as painless as possible. Formatting carries the potential of not moving well from one platform to another. I know that’s true between some operating systems and some word processing applications. I do not know if that is true in copying from websites. But I do know that when I have copied information from various websites and pasted into whatever document I’m working on, sometimes it works, and sometimes there’s a lot of clean-up needed. I want to keep this as simple for you as I can. I see no need for me to format my citations in a way that makes it difficult for you to quickly copy a citation and paste it elsewhere.
Also, the “First Holding” etc. is not necessarily the first holding in the case. It’s the first holding I have listed, but I’m sort of arbitrary at times. So you might see a case citation that says something like “See [case name but no citation], supra,” and yet the cited case has not yet appeared. For some, I’ve corrected it by inserting the full citation. For others, I’ve left them as is, because in a subsequent “holding” the full citation appears. In this post, you’ll see at least one example of that (the reference to “Moine” in Case 000014). I’ll try to get that cleaned up by the time I’m ready to fully engage.
In case that wasn’t enough intro for you, here’s today’s menu:
The court miscalculated credit for time served for time spent in a residential program involuntarily;
We learn a little bit about eligibility for mental health diversion;
In a case that isn’t necessarily a win, we learn about the duty of trial counsel to retain a copy of the defendant’s file for at least as long as the term of incarceration;
Miscreancy committed after the newly shortened maximum period of probation cannot be the bases for revocation of probation that has expired by law;
A facially sufficient petition for recall under section 1172.6 cannot be summarily denied at the initial stage unless the petition and record in the case establish conclusively that the defendant is ineligible as a matter of law;
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;
What a defendant can do if incarcerated and the attorney fails to timely file a notice of appeal that the defendant expected the attorney to file;
The court must obtain a probation report before sentencing the defendant on a probation revocation;
We learn a little more about when a court is not permitted to summarily deny a defendant relief under section 1172.6;
For mental health diversion, the burden rests with the prosecution to prove by clear and convincing evidence that the disorder was not a causal factor in the crime.
Case: 000013
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. [See] Penal Code section 2900.5, subdivision (a), “when the defendant has been in custody, including, but not limited to, any time spent in a jail, camp, work furlough facility, halfway house, rehabilitation facility, hospital, prison, juvenile detention facility, or similar residential institution, all days of custody of the defendant . . . shall be credited upon his or her term of imprisonment. . . .” Per subivision (b), such “credit shall be given only where the custody to be credited is attributable to proceedings related to the same conduct for which the defendant has been convicted.”
Second Holding: Involuntary time in treatment counts as credit for time served when attributable to the criminal proceedings. [See] 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, distinguished for example, in which the defendant’s voluntary stay at a rehabilitation facility did not qualify for custody credit under section 2900.5.”
Case: 000014
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: Application of an incorrect legal standard on Mental Health Diversion requires reversal. [See] PC 1001.36, subdivision (c), which required the court to consider whether her symptoms would respond to mental health treatment; whether she consented to diversion and waived her speedy trial rights; whether she agreed to comply with treatment as a condition of diversion; and whether she would pose an unreasonable risk of danger to public safety; 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].) And a trial court abuses its discretion when it applies the wrong legal standard. (People v. Moine, supra, 62 Cal.App.5th at p. 449.)
Second Holding: The court reviews denial of Mental Health diversion under the abuse of discretion standard. [See] (People v. Moine (2021) 62 Cal.App.5th 440, 448-449.) “A court abuses its discretion when it makes an arbitrary or capricious decision by applying the wrong legal standard [citations], or bases its decision on express or implied factual findings that are not supported by substantial evidence.”
Third Holding: There is a presumption of correctness in court orders [See] People v. Giordano (2007) 42 Cal.4th 644, 666 –We presume a trial court’s order is correct and indulge all intendments and reasonable inferences to support it.; People v. Ramirez (2021) 10 Cal.5th 983, 1042–Absent evidence to the contrary, we presume a trial court knew and applied the law; Lafayette Morehouse, Inc. v. Chronicle Publishing Co. (1995) 39 Cal.App.4th 1379, 1384 [“When the record clearly demonstrates what the trial court did, we will not presume it did something different”]; Paterno v. State of California (2003) 113 Cal.App.4th 998, 1015 — “When the record clearly demonstrates what the trial court did, we will not presume it did something different.”
Case: 000015
Note from Gary: 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 won’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 [See] State Bar proposed opinion 19-0004 (duty to retain files while client is alive); State Bar Rules of Prof Conduct 1.16.
Second Holding: As of 1/1/26, Penal Code section 1054.9 will 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. [See] PC 1054.9; Barnett v. Superior Court (2010) 50 Cal.4th 890 (Barnett) to address whether defendants had the burden to show that the requested discovery materials actually exist and are material, and whether section 1054.9 applies to discovery materials possessed by out-of-state agencies. (Barnett, at p. 897.) People v. Superior Court (Morales) (2017) 2 Cal.5th 523, a case in which our Supreme Court found that because section 1054.9 provides the trial court jurisdiction “to grant postconviction discovery to the extent consistent with the statute,” Code of Civil Procedure section 187 provides the court the inherent power to issue orders for the preservation of that evidence pending the filing of such a motion. Satele v. Superior Court (2019) 7 Cal.5th 852 addressed the scope of section 1054.9 and whether its provisions applied to evidence held by the court.
Third Holding: Review of nonappealable order is by petition for writ of mandate [See] 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 [See] 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. [See] 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 [See] 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.
Eighth Holding: Well, not exactly a holding in the opinion, but here’s exactly what subdivision (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.” [Emphasis added by me.]
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 (bold italics added by me): “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.
Case: 000016
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.]
Holding: Acts committed after the statutory shortening of the length of the probation term do not constitute violations of probation [See] People v. Faial (2025) 18 Cal.5th 199 ; Assembly Bill No. 1950 (2019–2020 Reg. Sess.)
Case: 000017
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, subdivision (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. [See] 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–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.
Second Holding: The record of conviction includes documents from jury trial such as jury instructions and verdict forms. [See] 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. [See] 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. [See] 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 [See] People v. Lewis (2021) 11 Cal.5th 952, 971.
Case: 000018
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 [See] Erlinger v. United States (2024) 602 U.S. 821. In People v. Wiley (2025) 17 Cal.5th 1069 (Wiley), our Supreme Court addressed section 1170, subdivision (b)(3)’s prior conviction exception in light of the holding in Erlinger. “To avoid any application that would set section 1170, subdivision (3) at odds with the high court’s constitutional interpretation, [the court] interpret[ed] section 1170, subdivision (3)’s procedure in a manner that is coextensive with high court dictates.” (Id. at p. 1086.) Thus, in accordance with Erlinger, the court held that “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.”
Second Holding: Failure to object generally results in forfeiture and can apply to constitutional claims [See] 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 [See] People v. French (2008) 43 Cal.4th 36, 46.
Fourth Holding: An appellate court can exercise discretion to address a forfeited issue [See] 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” [See] People v. Wiley (2025) 17 Cal.5th 1069 (Wiley), our Supreme Court addressed section 1170, subdivision (b)(3)’s prior conviction exception in light of the holding in Erlinger. “To avoid any application that would set section 1170, subdivision (3) at odds with the high court’s constitutional interpretation, [the court] interpret[ed] section 1170, subdivision (3)’s procedure in a manner that is coextensive with high court dictates.” (Id. at p. 1086.) Thus, in accordance with Erlinger, the court held that “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”; People v. Lynch (2024) 16 Cal.5th 730, 776.
Case: 000019
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 [See] In re Benoit (1973) 10 Cal.3d 72.
Second Holding: In felony cases, the notice must be filed within 60 days. [See] Rule 8.308. Time to appeal: (a) Normal time: Except as provided in (b) or as otherwise provided by law, a notice of appeal and any statement required by Penal Code section 1237.5 must be filed within 60 days after the rendition of the judgment or the making of the order being appealed. Except as provided in rule 8.66 [which pertains to emergency tolling made necessary by the occurrence or danger of an earthquake, fire, public health crisis, or other public emergency, or by the destruction of or danger to a building housing a reviewing court] , no court may extend the time to file a notice of appeal. (b) Cross-appeal If the defendant or the People timely appeals from a judgment or appealable order, the time for any other party to appeal from the same judgment or order is either the time specified in (a) or 30 days after the superior court clerk sends notification of the first appeal, whichever is later. (c) Premature notice of appeal A notice of appeal filed before the judgment is rendered or the order is made is premature, but the reviewing court may treat the notice as filed immediately after the rendition of judgment or the making of the order. ( (d) Late notice of appeal The superior court clerk must mark a late notice of appeal “Received [date] but not filed,” notify the party that the notice was not filed because it was late, and send a copy of the marked notice of appeal to the district appellate project.
Third Holding: In misdemanor appeals, the notice must be filed within 30 days. [See] Rule 8.393. Time to appeal A notice of appeal under this article must be filed within 30 days after the rendition of the judgment or the making of the order being appealed.
Fourth Holding: An untimely notice of appeal divests the appellate court of jurisdiction to hear the appeal. [See] In re G.C. (2020) 8 Cal.5th 1119; People v. Mendez (1999) 19 Cal.4th 1084, 1094: 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.
Case: 000020
Following a revocation of probation, the defendant was sentenced to State Prison. He appeals, asserting five arguments, the first of which is that the trial court erred in not obtaining a probation report before sentencing him. The Attorney General concedes that the court erred and that the error was prejudicial. We agree and 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. [See] Penal Code section 1203(b)(1); Penal Code section 1203, subdivision (b)(4), provides that: “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.”
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. [See] People v. Llamas (1998) 67 Cal.App.4th 35, 40.
Third Holding: Prejudice is measured under Watson (People v. Watson (1956) 46 Cal.2d 818) [See] People v. Dobbins (2005) 127 Cal.App.4th 176.
Fourth Holding: Stipulation to waive referral to probation must appear in the minutes [See] 1203(b)(4).
Case: 000021
As explained below, we agree with the parties 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 [See] 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.’” [See] People v. Lewis (2021) 11 Cal.5th 952, 959.; SB 1437 (2017–2018 Reg. Sess., Stats. 2018, ch. 1015); SB 775 ((2021–2022 Reg. Sess., Stats. 2021, ch. 551; PC 1172.6; PC 1170.95.
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. [See] 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. [See] 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. [See] People v. Gaillard (2024) 99 Cal.App.5th 1206, 1211–1212; People v. Fisher (2023) 95 Cal.App.5th 1022, 1029; (Disagrees with 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. [See] 1172.6(c).
Seventh Holding: We independently review a summary denial of a section 1172.6 petition for resentencing [See] People v. Gaillard (2024) 99 Cal.App.5th 1206.
Case: 000022
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. The People concede the court’s error. 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. [See] PC 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. [See] Negron v. Superior Court (2021) 70 Cal.App.5th 1007, 1016; People v. Moine (2021) 62 Cal.App.5th 440, 448–449; PC 1001.36, subd. (a) [noting the court “may, in its discretion,” grant pretrial diversion].)
Third Holding: Diversion is discretionary, even if eligibility and suitability are present [See] Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, at pp. 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 “[i]n 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.” [See] Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 892–893; PC 1001.36, subd. (c)(4).
Fifth Holding: Unreasonable risk to public safety is defined as likelihood of commission of super strike as defined [See] PC 1001.36, subd. (c)(4); PC 1170.18; PC 667 subd. (c); § 667, subd. (e)(2)(C)(iv).