Category Archives: Discretion

Discretion, Standard of review

Case: 000022

Posted on by Gary McCurdy

Error and/or relief

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

First Holding:

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

Authority:

PEN 1001.36

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

Second Holding:

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

Authority:

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

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

Third Holding:

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

Authority:

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

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

Fourth Holding:

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

Authority:

PEN 1001.36(c)(4)

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

Discretion, Standard of review

Case 000014

Posted on by Gary McCurdy

Error and/or relief

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

First Holding:

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

Authority:

PEN 1001.36(c)

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

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

Second Holding:

The court reviews denial of Mental Health diversion under the abuse of discretion standard. A court abuses its discretion when it makes an arbitrary or capricious decision by applying the wrong legal standard, or bases its decision on express or implied factual findings that are not supported by substantial evidence.

Authority:

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

Third Holding:

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

Authority:

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

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

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

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

Discretion, Jurisdiction, Sentencing

Case 000009

Posted on by Gary McCurdy

Error and/or relief

The defendant invited the trial court to recall his sentence under Penal Code section 1170.1. The court appointed counsel and set a hearing date, but concluded at hearing (with the defendant not being present) that no one-year priors were ever alleged [possibly conflating the request with a motion for resentencing under section 1172.5, which does pertain to resentencing on cases that had certain now-invalid prior prison term enhancements but is unrelated to an invitation for recall of a sentence under section 1170.1] and determined that he was not eligible for resentencing under 1172.1. Reversed.

First Holding:

By taking action on a purported motion that defendant did not make, it conferred jurisdiction on the Court of Appeal to rectify the error.

Authority:

Department of Water Resources Environmental Impact Cases (2022) 79 Cal.App.5th 556, 573

Second Holding:

A defendant is not entitled to file a petition seeking relief from the court under section 1170.1. If a defendant requests consideration for relief under this section, the court is not required to respond.

Authority:

PEN 1170.1(c)

People v. Hodge (2024) 107 Cal.App.5th 985

Third Holding:

The right to appeal is statutory only, and a party may not appeal a trial court’s judgment, order or ruling unless such is expressly made appealable by statute.

Authority:

People v. Loper (2015) 60 Cal.4th 1155, 1159

Fourth Holding:

It is an abuse of discretion when a court applies improper criteria or an incorrect legal standard to decide an issue.

Authority:

Department of Water Resources Environmental Impact Cases (2022) 79 Cal.App.5th 556, 573

Discretion

Case: 000003

Posted on by Gary McCurdy

Error and/or relief:

The defendant contends, and the People concede, the case must be remanded for the juvenile court to declare whether his grand theft offense was a misdemeanor or a felony, as required by section 702. We agree and remand with instructions.

Holding:

Juvenile court must declare whether the wobbler grand theft offense was a misdemeanor or a felony. Absent a court’s express declaration or other evidence the juvenile court was aware of, and exercised, its discretion to determine the felony or misdemeanor nature of a wobbler, the matter must be remanded. Section 702 error is not harmless unless the record shows that the juvenile court was aware of, and exercised its discretion as to each wobbler alleged against the minor.

Authority:

Cal. Rules of Court, rule 5.790(a)(1)

In re Manzy W. (1997) 14 Cal.4th 1199, 1204, 1207

In re Kenneth H. (1983) 33 Cal.3d 616, 619

In re Ricky H. (1981) 30 Cal.3d 176, 191

In re F.M. (2023) 14 Cal.5th 701, 712