Category Archives: Discretion

Amelioration, Discretion, Sentencing, Standard of review

Case 001010

Posted on by Gary McCurdy

Error and/or relief

In resentencing the defendant, the court abused its discretion in not giving proper consideration to whether to strike prior strike convictions. Remanded for proper consideration.

First Holding:

Under section 1172.1, a trial court may recall and resentence “at any time” upon the recommendation of the Secretary of the Department of Corrections and Rehabilitation, the Board of Parole Hearings, the district attorney of the county in which the defendant was sentenced, or the Attorney General if the Department of Justice originally prosecuted the case.

Effective January 1, 2024, a trial court may recall a sentence and resentence a defendant on its own motion “at any time if the applicable sentencing laws at the time of original sentencing are subsequently changed by new statutory authority or case law.

Once a trial court decides to recall and resentence, it may either reduce the sentence by modification or vacate the conviction and impose judgment on any necessarily included lesser offense or lesser related offense, whether or not that offense was charged in the original pleading.

In resentencing the defendant in the same manner as if they had not previously been sentenced, the resentencing court shall consider if the defendant has experienced psychological, physical, or childhood trauma, including, but not limited to, abuse, neglect, exploitation, or sexual violence, and whether those circumstances were a contributing factor in the commission of the offense.

Authority:

PEN 1172.1

Second Holding:

Section 1385(c)(1) provides that, notwithstanding any other law, the court shall dismiss an enhancement if it is in the furtherance of justice to do so, except if dismissal of that enhancement is prohibited by any initiative statute.

Section 1385(c)(2) further provides that, in exercising its discretion under this subdivision, the court shall consider and afford great weight to evidence offered by the defendant to prove that any of the mitigating circumstances in subparagraphs (A) to (I) are present. Proof of the presence of one or more of these circumstances weighs greatly in favor of dismissing the enhancement, unless the court finds that dismissal of the enhancement would endanger public safety.

‘Endanger public safety’ means there is a likelihood that the dismissal of the enhancement would result in physical injury or other serious danger to others. Accordingly, if the court finds that dismissal of an enhancement would endanger public safety, then the court need not consider the listed mitigating circumstances.

Authority:

PEN 1385

People v. Mendoza (2023) 88 Cal.App.5th 287, 296

Third Holding:

A court’s decision not to strike a prior serious felony enhancement is reviewed for abuse of discretion.

Authority:

People v. Shaw (2020) 56 Cal.App.5th 582, 585

People v. Jefferson (2016) 1 Cal.App.5th 235, 242–243 [a trial court’s exercise of discretion must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice]

Fourth Holding:

Absent a finding that dismissal would endanger public safety, a court retains the discretion to impose or dismiss enhancements provided that it assigns significant value to the enumerated mitigating circumstances when they are present.

In other words, if the court does not find that dismissal would endanger public safety, the presence of an enumerated mitigating circumstance will generally result in the dismissal of an enhancement unless the sentencing court finds substantial, credible evidence of countervailing factors that ‘may nonetheless neutralize even the great weight of the mitigating circumstance, such that dismissal of the enhancement is not in furtherance of justice.

Authority:

People v. Walker (2024) 16 Cal.5th 1024,1029

Fifth Holding:

A trial court has discretion under the Three Strikes law to dismiss or vacate prior conviction allegations or findings in the furtherance of justice. In exercising its discretion, the court may give no weight whatsoever to factors extrinsic to the Three Strikes scheme.

Instead, preponderant weight must be accorded to factors intrinsic to the scheme, such the nature and circumstances of the defendant’s present felonies and the prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects. In considering these intrinsic factors the court must determine whether the defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.

While the purpose of the Three Strikes law was to ensure longer prison sentences, the “overarching consideration” and “underlying purpose” in striking prior conviction allegations is the avoidance of unjust sentences.

Authority:

PEN 1385(a)

People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 530-531

People v. Williams (1998) 17 Cal.4th 148, 161

People v. Garcia (1999) 20 Cal.4th 490, 498–500

Sixth Holding:

Abuse of discretion in failing to strike a prior conviction occurs in limited circumstances: where the trial court is not aware of its discretion; where the trial court considers impermissible factors; or where applying the Three Strikes law would produce an arbitrary, capricious, or patently absurd result under the specific facts of a particular case.

A reviewing court’s disagreement with the trial court’s weighing of proper factors (as distinct from the trial court’s reliance on improper factors in the weighing process) does not constitute an abuse of discretion.

We conclude from this record that the trial court failed to balance the appropriate factors set forth in Williams, that is, the defendant’s personal background, character, and prospects, and the specifics of his criminal history, the characteristics of the present offense for which he was being resentenced, or if a shorter sentence would accommodate risks to public safety.

Significantly, courts have reversed the denial of dismissal of prior strikes in instances where the prior strikes were far more serious than the defendant’s.

(Gary note: I have left out the appellate court’s recitation of facts peculiar to this defendant and the facts in this case, but court determined that the lower court had not given proper consideration of those factors. It remanded for a proper consideration.)

Authority:

People v. Carmony (2004) 33 Cal.4th 367, 378-379

People v. Dryden (2021) 60 Cal.App.5th 1007, 1029

People v. Avila (2020) 57 Cal.App.5th 1134, 1140–1141 [defendant’s three previous strikes were two robberies and assault with a knife]

Discretion, Sentencing

Case 001007

Posted on by Gary McCurdy

Error and/or relief

This is an appeal after resentencing under section 1172.75. The court erred in believing that the original sentence was unauthorized because full consecutive sentences on two of the counts had been mandatory. Thus, it was error for the court to vacate the original imposition of concurrent sentences and impose them consecutively.

Holding:

The trial court was mistaken in its determination that the original sentence was unauthorized because full consecutive sentences on both counts were mandatory.

Both crimes were committed on the same occasion on the same victim. Therefore, while section 667.6(c) authorized consecutive sentencing on these two offenses, imposing full consecutive sentences for both offenses was not mandatory. Similarly, at resentencing, the court was not required to impose a full consecutive sentence.

The trial court appears not to have been aware of its discretion in this regard. We therefore remand to permit the court to resentence the defendant pursuant to section 1172.75.

Authority:

PEN 667.6(c)

People v. Deloza (1998) 18 Cal.4th 585, 596–597, 600 [remanding for resentencing where trial court misunderstood the scope of its discretion to impose concurrent sentences and erroneously believed consecutive sentences were mandatory]

People v. Flores (2020) 9 Cal.5th 371, 431–432 [when a trial court misunderstands or is unaware of the scope of its sentencing discretion, a reviewing court must remand for resentencing unless the record clearly indicates the trial court would have reached the same conclusion even if it had been aware that it had such discretion]

Discretion, Standard of review, Sufficiency of and substantial evidence

Case 000999

Posted on by Gary McCurdy

Error and/or relief

The court abused its discretion by denying the defendant’s request for mental health diversion because its finding that he is ineligible for diversion is not supported by substantial evidence.

First Holding:

The Legislature enacted sections 1001.35 and 1001.36 to authorize trial courts to grant pretrial mental health diversion to defendants diagnosed with qualifying mental disorders. To be eligible for mental health diversion, a defendant must meet two requirements.

One, the defendant must have been diagnosed within the past five years with a mental disorder identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders.

And two, the defendant’s mental disorder must be a significant factor in the commission of the offense.

Authority:

PEN 1001.36(b)

Gomez v. Superior Court (2025) 113 Cal.App.5th 671, 677

Lacour v. Superior Court (2025) 110 Cal.App.5th 391, 400

Second Holding:

Among the express purposes of the diversion program is to increase diversion of individuals with mental disorders to mitigate the individuals entry and reentry into the criminal justice system while protecting public safety.

Under section 1001.36(b), the court must find a causal connection unless there is clear and convincing evidence that the mental disorder was not a motivating factor, causal factor, or contributing factor to the defendant’s involvement in the alleged offense. Eligibility no longer turned on findings to the court’s satisfaction.

The statute requires the court to find that the defendant’s mental disorder was a significant factor unless clear and convincing evidence demonstrates otherwise. And it is the prosecution’s burden to provide clear and convincing evidence to overcome the presumption.

Authority:

Siam v. Superior Court (2026) 118 Cal.App.5th 67, 80

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

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

People v. Cabalar (2025) 117 Cal.App.5th 41, 52

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

Third Holding:

Once a defendant meets the eligibility requirements, the trial court must then determine whether a defendant is suitable for diversion using the four criteria outlined in section 1001.36(c): (1) A qualified mental health expert has determined the defendant’s symptoms would respond to mental health treatment; (2) the defendant has consented to diversion and waived the right to a speedy trial; (3) the defendant has agreed to comply with treatment as a condition of diversion, and (4) the court has determined the defendant will not pose an unreasonable risk of danger to public safety if treated in the community.

Authority:

PEN 1001.36(c)

Lacour v. Superior Court (2025) 110 Cal.App.5th 391, 400-401

Fourth Holding:

We review a trial court’s ruling on an application for mental health diversion for abuse of discretion and its factual findings for substantial evidence. A 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. By definition, ‘substantial evidence’ requires evidence and not mere speculation.

Authority:

Lacour v. Superior Court (2025) 110 Cal.App.5th 391, 401

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

People v. Ramon (2009) 175 Cal.App.4th 843, 851

Fifth Holding:

In reviewing a trial court’s finding that a fact has been proved by clear and convincing evidence, the question before us is whether the record as a whole contains substantial evidence from which a reasonable fact finder could have found it highly probable that the dispute] fact was true.

More specifically, in this context, we must determine whether the record as a whole contains substantial evidence from which a reasonable fact finder could have found it highly probable that the defendant’s mental disorder was not a motivating factor, causal factor, or contributing factor to the defendant’s involvement in the alleged offense. To answer that question, we review the record in the light most favorable to the prevailing party and give due deference to how the trier of fact may have evaluated the credibility of witnesses, resolved conflicts in the evidence, and drawn reasonable inferences from the evidence.

(Gary note: The balance of the decision discusses the conclusions drawn by the trial court that it relied on to conclude that the mental disorder did not contribute to the offense. The appellate court concluded that the inferences the trial court drew were not substantial evidence to overcome by clear and convincing the presumption that the mental disorder was a contributing factor, and reversed the denial. It remanded for the court to reconsider the defendant’s application for mental health diversion consistent with the appellate court’s opinion.)

Authority:

Lacour v. Superior Court (2025) 110 Cal.App.5th 391, 401-402

Amelioration, Discretion, Elements of crime, Sentencing, Standard of review

Case 000984

Posted on by Gary McCurdy

Error and/or relief

On resentencing under section 1172.75, the court erred in imposing the firearm enhancement on count 2.

First Holding:

In affirming the trial court’s decision to deny the defendant’s request for dismissal of the firearm enhancement attached to count 1, we review the trial court’s sentencing decision at a section 1172.75 resentencing for an abuse of discretion, including a court’s determination of dangerousness. Section 1172.75(d) vests the superior court with broad discretion based on an inherently factual inquiry.

Under an abuse of discretion standard, we ask whether the trial court’s findings of fact are supported by substantial evidence, whether its rulings of law are correct, and whether its application of the law to the facts was neither arbitrary nor capricious.

A court also abuses its discretion if the decision is made without the sentencing court’s informed discretion or if the court is unaware of the scope of its discretionary powers.

The burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary.

A defendant’s citation to a silent record is insufficient to meet his burden to demonstrate an abuse of discretion. We assume the trial court was aware of and followed applicable law.

Authority:

People v. Gonzalez (2024) 103 Cal.App.5th 215, 225

People v. Mendoza (2023) 88 Cal.App.5th 287, 298

People v. Garcia (2024) 101 Cal.App.5th 848, 856–857

People v. Fredrickson (2023) 90 Cal.App.5th 984, 988

People v. Carmony (2004) 33 Cal.4th 367, 376

People v. Coleman (2024) 98 Cal.App.5th 709, 725

People v. Calhoun (1983) 141 Cal.App.3d 117, 126 [a court’s sentencing decision implies requisite subsidiary findings]

Second Holding:

On count 2, the defendant had been convicted of section 246 (shooting at an occupied vehicle), enhanced under section 12022.53(d) for an additional 25 years to life. (In the prior appeal from the conviction, the appellate court struck the enhancements on count 2 under sections 12022.53(b) and (c), because section 246 is not one of the crimes listed in 12022.53(a) that subdivisions (b) and (c) can apply to.) At the 1172.75 resentencing hearing, the court imposed the lesser enhancement on count 2, under section 12022.53(c), for an enhancement of a determinate term of 20 years instead of the indeterminate 25 years to life he was serving under section 12022.53(d).

Because section 246 is not a crime listed under section 12022.53(a) to which subdivisions (b) and (c) can be applied, it was error to reduce the section 12022.53(d) enhancement to 12022.53(c).

While the trial court could dismiss the section 12022.53(d), firearm enhancement as to count 2, it could not impose a lesser enhancement under section 12022.53(c). We vacate the sentence as to count 2 and remand for resentencing as to that count only.

(Gary note: The court did not mention it as an option, but the trial court can dismiss the section 12022.53 (as the appellate court stated) and impose an enhancement on a lesser included enhancement, such as section 12022.5.

(Under People v. McDavid (2024) 15 Cal.5th 1015, the Supreme Court extended its holding of Tirado (which held that a court could exercise its discretion to impose a lesser section 12022.53 enhancement to the one that was found true) to expressly permit striking section 12022.53 and imposing a lesser included, uncharged enhancement authorized elsewhere in the Penal Code, outside section 12022.53. Under McDavid, the court in this case could strike the 12022.53(d) enhancement and impose an enhancement under section 12022.5, for example. In other words, the court is not faced with a choice of it’s either all or nothing.)

Authority:

PEN 12022.53(a)

People v. Tirado (2022) 12 Cal.5th 688, 699, fn. 12

(People v. McDavid (2024) 15 Cal.5th 1015)

Discretion, Standard of review, Statutory interpretation

Case 000981

Posted on by Gary McCurdy

Error and/or relief

The court abused its discretion by denying diversion after finding that the defendant is NOT likely to commit a super strike offense.

We reverse the judgment and direct the court to vacate its order denying mental health diversion and enter a new order granting the motion unless there is evidence of changed circumstances that provide a basis for denying the motion.

First Holding:

The defendant obtained a certificate of probable cause and appealed the denial of his motion for mental health diversion. Appeal lies from the judgment.

Authority:

PEN 1237.5 [appeal may be taken after a no contest plea if the court issues a certificate of probable cause]

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

Second Holding:

We review the diversion denial order for abuse of discretion, meaning the decision is arbitrary or capricious, applied the wrong legal standard, or is unsupported by substantial evidence.

Authority:

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

People v. Graham (2024) 102 Cal.App.5th 787, 795

Third Holding:

The diversion law promotes increased diversion of individuals with mental disorders to mitigate the individuals’ entry and reentry into the criminal justice system while protecting public safety. The potentially ameliorative benefit for criminal defendants who suffer from a qualifying mental disorder is balanced against protecting public safety. The law is intended to apply as broadly as possible.

Authority:

PEN 1001.35(a)

People v. Frahs (2020) 9 Cal.5th 618, 630-631

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

Fourth Holding:

A defendant charged with a felony may be referred to a program of mental health treatment utilizing existing inpatient or outpatient mental health resources” for up to two years. If the defendant performed satisfactorily in diversion, at the end of the period of diversion, the court shall dismiss the defendant’s criminal charges that were the subject of the criminal proceedings at the time of the initial diversion.

In other words, the arrest upon which the diversion was based shall be deemed never to have occurred. If the defendant performs unsatisfactorily in a treatment program or engages in criminal conduct, the court may reinstate criminal proceedings.

Authority:

PEN 1001.36(f)(1)(A)(ii) and (C)(i), (g), and (h)

People v. Frahs (2020) 9 Cal.5th 618, 631

Fifth Holding:

A defendant is eligible for diversion if a mental health expert diagnoses the defendant with a qualifying mental disorder that was a significant factor in commission of the charged offense. A defendant is suitable for diversion if

(1) the expert opines that the defendant would respond to treatment;

(2) the defendant consents to diversion and waives the right to a speedy trial;

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

(4) the defendant will not pose an unreasonable risk of danger to public safety.

Authority:

PEN 1001.36(b) and (c)

People v. Tourville (2026) 120 Cal.App.5th 439, 452

Sixth Holding:

The only disputed issue in this appeal is public safety. The Legislature defined “unreasonable risk of danger to public safety” by incorporating section 1170.18. Section 1170.18(c) defines “unreasonable risk of danger to public safety” as an unreasonable risk that the petitioner will commit a new violent felony listed in section 667. The relevant violent felonies in section 667 are super strikes. Burglary–the charge the defendant faced–is not a super strike.

Courts limit discretion to deny diversion on “public safety” grounds to instances where a defendant is likely to commit a super strike.

Authority:

People v. Moine (2021) 62 Cal.App.5th 440, 449–450

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

People v. Whitmill (2022) 86 Cal.App.5th 1138, 1151

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 896

People v. Brown (2024) 101 Cal.App.5th 113, 121

People v. Graham (2024) 102 Cal.App.5th 787, 798–799

Gomez v. Superior Court (2025) 113 Cal.App.5th 671, 690–691

Siam v. Superior Court (2026) 118 Cal.App.5th 67, 83, 87–88

People v. Tourville (2026) 120 Cal.App.5th 439, 454–455

Seventh Holding:

The Legislature is presumed to know about existing case law when it amends a statute. The Legislature amended section 1001.36 seven times between 2022 and 2026 without eliminating the reference to section 1170.18, despite the decisions cited above, which require a finding that the defendant poses a risk of committing super strikes.

Authority:

People v. Rhodius (2025) 17 Cal.5th 1050, 1062

People v. Mitchell (2026) 19 Cal.5th 729, 743

People v. Frahs (2020) 9 Cal.5th 618, 634

Eighth Holding:

Beginning in 2027, courts applying section 1001.36 will no longer use the old definition of “unreasonable risk of danger to public safety” from section 1170.18. Instead, they will apply a new standard: “substantial and undue risk to the physical safety of another person.” Regardless of the forthcoming changes to section 1001.36, the version of the law applying to this defendant required a super strike finding.

The trial court found he did not pose a risk of committing super strikes, only that he poses an unreasonable risk of committing further residential burglaries. The court could not deny diversion based on a risk the defendfant will commit burglaries, thereby discounting the need to find public safety is imperiled by likely super strike offenses. The Legislature has specifically defined what constitutes ‘an unreasonable risk of danger to public safety’ under the statute, limiting it to the danger the defendant will commit a super strike.

Authority:

People v. Tourville (2026) 120 Cal.App.5th 439, 455

Ninth Holding:

Courts recognize “residual discretion” to deny diversion. However, while it is clear a trial court retains residual discretion to deny diversion even if all the threshold requirements are met, that does not mean, as the court suggested here, that it could reject a request for diversion based on an alternative meaning of public safety inconsistent with the specific statutory definition in section 1001.36(c)(4). In the guise of exercising its residual discretion, a court is not permitted to redefine public safety in a manner inconsistent with the Legislature’s expressed intent.

Authority:

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 896

Tenth Holding:

Reasons the court might exercise discretion to deny diversion include lack of a treatment program; a defendant’s history of failed treatment or misconduct in prior programs; or the availability of a better program for the defendant’s needs.

Authority:

People v. Tourville (2026) 120 Cal.App.5th 439, 457

People v. Qualkinbush (2022) 79 Cal.App.5th 879, 889–890

Appellate Principles, Discretion, Sentencing, Standard of review

Case 000975

Posted on by Gary McCurdy

Error and/or relief

We vacate the defendant’s sentence and remand for resentencing because the trial court erroneously believed the law required it to impose consecutive sentences for every count.

First Holding:

Under section 667.61(i), consecutive sentences are mandatory only to offenses listed in section 667.61(c), paragraphs (1) through (7). The crime of which the jury found the defendant guilty is described in 667.61(c), paragraph (8).

Thus, consecutive sentencing was not mandatory.

Authority:

PEN 667.61(c)

Second Holding:

Defendants are entitled to sentencing decisions made in the exercise of the informed discretion of the sentencing court, and a court that is unaware of its discretionary authority cannot exercise its informed discretion.

When a sentencing court was not aware of the full scope of its discretionary powers at the time the defendant was sentenced, the appropriate remedy is to remand for resentencing unless the record clearly indicates that the trial court would have reached the same conclusion even if it had been aware that it had such discretion.

Authority:

People v. Belmontes (1983) 34 Cal.3d 335, 348, fn. 8

People v. Salazar (2023) 15 Cal.5th 416, 419

Third Holding:

The Attorney General argues that the defendant forfeited his sentencing contention by failing to object below to the court’s error, and that the defendant cannot show his counsel was ineffective for failing to object because it was not reasonably likely the court would have imposed anything less than the 150-year sentence that it did.

We exercise our discretion to reach the question, notwithstanding forfeiture.

Authority:

People v. Leon (2016) 243 Cal.App.4th 1003 [the trial court’s erroneous understanding that it had no discretion to impose concurrent sentences may fall within a narrow class of sentencing issues that are reviewable in the absence of a timely objection, and in any event, we would exercise our discretion to resolve the claim in the interests of fairness and judicial economy and to forestall unnecessary ineffective assistance of counsel claims.]

People v. Williams (1998) 17 Cal.4th 148, 162, fn. 6 [An appellate court is generally not prohibited from reaching a question that has not been preserved for review by a party]

Fourth Holding:

The trial court’s repeated references to section 667.61(i)’s requirement that it impose consecutive sentences leaves no doubt that the court here did not know it retained the discretion to impose concurrent sentences per victim.

The court provided no other reason for imposing consecutive sentences, including no comment that the aggravating factor warranted a maximum sentence or any similar comment.

We therefore cannot conclude that the record clearly indicates the court would have imposed the same sentence if it had understood its full sentencing discretion. We accordingly remand the matter for resentencing.

Authority:

People v. Salazar (2023) 15 Cal.5th 416, 419

Appellate Principles, Discretion

Case 000968

Posted on by Gary McCurdy

Error and/or relief

In denying the petition, the trial court stated the law compelled it to find the defendant poses an unreasonable risk of danger to public safety if treated in the community because of the seriousness of the charged offenses.

The trial court abused its discretion in failing to apply the correct legal standard. Accordingly, we conditionally reverse the judgment, reverse the order denying the defendant’s petition, and remand the case for the trial court to reconsider the defendant’s petition.

First Holding:

To qualify for mental health diversion, a defendant must meet eligibility and suitability criteria. If a defendant is both eligible and suitable, the court may, in its discretion grant diversion. Thus, a diversion order is expressly discretionary with the court, even when all of the criteria are met.

Authority:

PEN 1001.36(a)

Gomez v. Superior Court (2025) 113 Cal.App.5th 671, 685

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

People v. Doron (2023) 95 Cal.App.5th 1, 9

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

Second Holding:

A defendant is eligible for diversion if he suffers from a qualifying mental disorder that was a significant factor in the commission of the charged offense.

A defendant is suitable for diversion if (1) a qualified mental health expert opines the defendant’s symptoms will respond to treatment, (2) the defendant consents to diversion and waives the right to a speedy trial, (3) the defendant agrees to comply with treatment, and (4) the defendant will not pose an unreasonable risk of danger to public safety if treated in the community.

As to the last suitability requirement, a defendant poses an unreasonable risk of danger to public safety only if there is an unreasonable risk he will commit a violent felony known as a super strike.

Authority:

PEN 1001.36

People v. Moine (2021) 62 Cal.App.5th 440, 449–450

Third Holding:

Nothing precludes a trial court from relying primarily, or even entirely, on the circumstances of the charged offense or offenses in denying a motion for diversion. However, no matter how serious the charged offenses, the court retains discretion to find the defendant does not pose an unreasonable danger.

Authority:

People v. Bunas (2022) 79 Cal.App.5th 840, 862

People v. Graham (2024) 102 Cal.App.5th 787, 799 [the court acted within its discretion in determining that the nature and manner of defendant’s charged crimes—and particularly, the two super strikes—rendered her likely to commit another super strike; section 1001.36 grants broad discretion to the court to consider any factors it deems appropriate when assessing dangerousness.]

Fourth Holding:

It appears here that the court applied the wrong standard in assessing the risk of danger to public safety. The court stated it was “here to consider the seriousness of the charges,” and “based on the seriousness of the charges,” the law “compels” it to find the defendant poses an unreasonable risk of danger to public safety if treated in the community.

These comments suggest the court erroneously believed, because of the seriousness of the charges, it lacked discretion to find in the defendant’s favor on the dangerousness issue.

Given that the court did not discuss the circumstances of the offenses or identify any other factors it considered in reaching its decision, we are not sufficiently confident that it understood it had discretion.

Authority:

People v. Moine (2021) 62 Cal.App.5th 440, 449 [a court abuses its discretion when it applies the wrong legal standard]

Fifth Holding:

A court unaware of the scope of its discretionary powers can no more exercise that informed discretion than one whose decision is or may have been based on misinformation regarding a material aspect of a defendant’s record.

Under these circumstances, the proper remedy is to remand unless the record clearly indicates that the trial court would have reached the same conclusion even if it had been aware that it had such discretion.

Authority:

People v. Doron (2023) 95 Cal.App.5th 1, 10

People v. Moine (2021) 62 Cal.App.5th 440, 451-452 [remanding for reconsideration where court erroneously found defendant failed to meet dangerousness suitability requirement]

People v. Gutierrez (2014) 58 Cal.4th 1354, 1391 [remand for resentencing is required when a court is unaware of the scope of its discretionary powers, unless the record clearly indicates the court would have reached the same conclusion had it been aware of its discretion]

Sixth Holding:

Here, the record does not clearly indicate how the court would have ruled had it applied the correct standard on the dangerousness issue. Indeed, the court expressed some regret that the law compelled it to find the defendant posed an unreasonable risk of danger.

Moreover, the Attorney General does not argue the defendant otherwise was ineligible or unsuitable for diversion as a matter of law. Accordingly, the proper remedy is a conditional reversal and remand with directions to reconsider the petition under the correct standard.

Authority:

People v. Frahs (2020) 9 Cal.5th 618, 640 [approving Court of Appeal’s decision to conditionally reverse a defendant’s convictions and sentence with instructions to conduct a hearing to consider eligibility for mental health diversion]

Discretion, Sentencing

Case 000966

Posted on by Gary McCurdy

Error and/or relief

The great bodily injury enhancement in connection with the kidnapping of the victim and the corporal-injury-on-a-child count both concern the same conduct, such that one of the sentences must be stayed under section 654.

Holding:

The great bodily injury enhancement in connection with the kidnapping of the victim and the corporal-injury-on-a-child count both concern the same conduct, such that one of the sentences must be stayed under section 654. We remand because the trial court has discretion where an act that is punishable in different ways by different provisions of law to punish a defendant under either of such provisions.

Authority:

PEN 654

People v. Mani (2022) 74 Cal.App.5th 343, 351

Discretion, Standard of review

Case 000958

Posted on by Gary McCurdy

Error and/or relief

The court abused its discretion by denying diversion because its finding that the defendant is ineligible for diversion is not supported by substantial evidence. Accordingly, we conditionally reverse and remand with instructions for the trial court to reconsider defendant’s application for mental health diversion.

First Holding:

The Legislature enacted Penal Code sections 1001.35 and 1001.36 to authorize trial courts to grant pretrial mental health diversion to defendants diagnosed with qualifying mental disorders. To be eligible for mental health diversion, a defendant must meet two requirements.

One, the defendant must have been diagnosed within the past five years with a mental disorder identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders.

And two, the defendant’s mental disorder must be a significant factor in the commission of the offense.

Authority:

PEN 1001.36(b)(1) and (b)(2)

Gomez v. Superior Court (2025) 113 Cal.App.5th 671, 677

Lacour v. Superior Court (2025) 110 Cal.App.5th 391, 400

Second Holding:

Among the express purposes of the diversion program is to increase diversion of individuals with mental disorders to mitigate the individuals’ entry and reentry into the criminal justice system while protecting public safety.

The court must find a causal connection unless there is clear and convincing evidence that the mental disorder was not a motivating factor, causal factor, or contributing factor to the defendant’s involvement in the alleged offense.

Eligibility no longer turned on findings to the court’s satisfaction. The statute requires the court to find that the defendant’s mental disorder was a significant factor unless clear and convincing evidence demonstrates otherwise.

And it is the prosecution’s burden to provide clear and convincing evidence to overcome the presumption.

Authority:

PEN 1001.35(a)

PEN 1001.36(b)

Siam v. Superior Court (2026) 118 Cal.App.5th 67, 80

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

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

People v. Cabalar (2025) 117 Cal.App.5th 41, 52

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

Third Holding:

Once a defendant meets the eligibility requirements, the trial court must then determine whether a defendant is suitable for diversion using the four criteria outlined in section 1001.36(c): (1) A qualified mental health expert has determined the defendant’s symptoms would respond to mental health treatment; (2) the defendant has consented to diversion and waived the right to a speedy trial; (3) the defendant has agreed to comply with treatment as a condition of diversion, and (4) the court has determined the defendant will not pose an unreasonable risk of danger to public safety if treated in the community.

Authority:

PEN 1001.36(c)

Lacour v. Superior Court (2025) 110 Cal.App.5th 391, 400-401

Fourth Holding:

We review a trial court’s ruling on an application for mental health diversion for abuse of discretion and its factual findings for substantial evidence. A 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. By definition, substantial evidence requires evidence and not mere speculation.

Authority:

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

People v. Ramon (2009) 175 Cal.App.4th 843, 851

Fifth Holding:

In reviewing a trial court’s finding that a fact has been proved by clear and convincing evidence, the question before the appellate court is whether the record as a whole contains substantial evidence from which a reasonable fact finder could have found it highly probable that the fact was true.

In this context, we must determine whether the record as a whole contains substantial evidence from which a reasonable fact finder could have found it highly probable that the defendant’s mental disorder was not a motivating factor, causal factor, or contributing factor to the defendant’s involvement in the alleged offense.

To answer that question, we review the record in the light most favorable to the prevailing party and give due deference to how the trier of fact may have evaluated the credibility of witnesses, resolved conflicts in the evidence, and drawn reasonable inferences from the evidence.

(Gary note: The opinion goes on to recite details specific to this case on the question whether the mental disorder contributed to the offense, and concluded that there was not clear and convincing evidence to overcome the presumption that it did. The details are fact-specific and of no value in the context of these summaries, because unpublished decisions cannot be cited for comparison or authority or any other purpose.)

Authority:

Lacour v. Superior Court (2025) 110 Cal.App.5th 391, 401-402

Discretion, Sentencing

Case 000934

Posted on by Gary McCurdy

Error and/or relief

It is not clear whether the court intended to run count 2 concurrently or consecutively. The court stated it was to be run concurrently, but when stating the sentence imposed, it appeared to run the counts consecutively. We remand for clarification of the court’s actual intended sentence.

Holding:

In the course of explaining the sentence to be imposed, the trial court stated that, under section 1170.15, but the trial court said that under Woodworth, it had discretion to impose a concurrent sentence (it said a “current” sentence), and that it was doing so.

On all the remaining counts, the court imposed the sentences concurrently. But when the court announced the sentence, the calculation was based on running count 2 full term consecutively. It appears appropriate under these circumstances to reverse the sentence and remand the matter to permit the trial court to clarify its sentence.

Authority:

Pen 1170.15

People v. Woodworth (2016) 245 Cal.App.4th 1473

People v. Garcia (1997) 59 Cal.App.4th 834, 838-839

Discretion, Juveniles, Standard of review, Sufficiency of and substantial evidence

Case 000926

Posted on by Gary McCurdy

Error and/or relief

We conclude that the juvenile court erred when it found all five statutory criteria weigh in favor of transferring the minor to criminal court under Welfare and Institutions Code section 707(a)(3)(A)–(E)), and when it found him not amenable to rehabilitation.

(Gary note: After setting out the holdings I have listed below, the opinion goes into great detail analyzing the evidence in the case under the criteria required to be considered by the juvenile court in deciding whether to retain the minor in juvenile court or to transfer the minor to adult court. The analysis is quite extensive and completely fact-heavy. Since an unpublished opinion cannot be cited as authority, the court’s analysis could not be used in any briefing to compare and contrast with any other defendant’s scenario. So I have not included that portion of the opinion.)

First Holding:

With respect to whether the minor can be rehabilitated within the two-year period the juvenile court may exercise jurisdiction over him given his age and the success of previous attempts by the juvenile court to rehabilitate the minor, the prosecution failed to meet its burden of proving these criteria favor transfer to criminal court and, therefore, there is insufficient evidence to support the juvenile court’s findings in the prosecution’s favor on these issues.

Although the weight to be given each of the five criteria is within the juvenile court’s discretion, and the court has the discretion to conclude that one or more of the five criteria predominate so as to determine the result, even though some or all of the other criteria might point to a different result, the juvenile court’s ultimate finding that the minor is not amenable to rehabilitation is unsupported by substantial evidence.

Authority:

In re O.F. (2026) 119 Cal.App.5th 133, 159

In re E.P. (2023) 89 Cal.App.5th 409, 417

Second Holding:

Where, as here, the juvenile court has abused its discretion in evaluating the evidence and applying the operative legal standards, it is appropriate to remand the matter so the court may reconsider the evidence and its ultimate determination through the lens of amenability to rehabilitation.

Authority:

In re O.F. (2026) 119 Cal.App.5th 133, 162

In re S.S. (2023) 89 Cal.App.5th 1277, 1288

J.N. v. Superior Court (2018) 23 Cal.App.5th 706, 714–715 [exercises of discretion must be guided by applicable legal principles]

Third Holding:

When a minor age 16 or older is alleged to have committed a felony, the prosecution may move to transfer the minor to criminal court. Upon the motion, the juvenile court must order the probation officer to submit a report on the minor’s behavioral patterns and social history. The parties may submit other relevant evidence’ in connection with the transfer motion. In determining whether to transfer a minor to criminal court, the juvenile court shall consider the criteria specified in subparagraphs (A) to (E) of section 707, subdivision (a)(3).

These criteria are: (1) the degree of criminal sophistication by the minor; (2) whether the minor can be rehabilitated prior to the expiration of the juvenile court’s jurisdiction; (3)the minor’s previous delinquent history; (4) the success of previous attempts by the juvenile court to rehabilitate the minor; and (5) the circumstances and gravity of the offense alleged in the petition to have been committed by the minor.

Section 707 also sets forth a nonexhaustive list of factors relevant to each of the five criteria. And consideration of these factors is now mandatory rather than discretionary.

Authority:

WIC 707

In re O.F. (2026) 119 Cal.App.5th 133, 158-159, 160

In re Miguel R. (2024) 100 Cal.App.5th 152, 164-165

Fourth Holding:

As amended by AB 2361, section 707 now provides that in order to find that the minor should be transferred to a court of criminal jurisdiction, the court shall find by clear and convincing evidence that the minor is not amenable to rehabilitation while under the jurisdiction of the juvenile court.

This changed the finding a juvenile court must make before ordering a transfer in two ways: (1) raising the standard of proof; and (2) requiring a new specific finding regarding amenability to rehabilitation.

It also amended section 707 to require the court to recite the basis for its decision in an order that includes the reasons supporting the court’s finding that the minor is not amenable to rehabilitation while under the jurisdiction of the juvenile court.

Authority:

In re S.S. (2023) 89 Cal.App.5th 1277, 1284

Fifth Holding:

The weight to be given to each of these criteria is within the court’s discretion. However, to transfer a minor to criminal court, the juvenile court must ultimately find, by clear and convincing evidence, that the minor is not amenable to rehabilitation while under the jurisdiction of the juvenile court.

The prosecution bears the burden of proof. Nothing in section 707 indicates that the court is required to give equal weight to each of the five criteria or that it would necessarily be an abuse of discretion to find that one criterion outweighed the other criteria.

This standard requires a finding of high probability The evidence must be so clear as to leave no substantial doubt; sufficiently strong to command the unhesitating assent of every reasonable mind.

Authority:

Kevin P. v. Superior Court (2020) 57 Cal.App.5th 173, 186

D.W. v. Superior Court (2019) 43 Cal.App.5th 109, 116

In re O.F. (2026) 119 Cal.App.5th 133, 159, 161

C.S. v. Superior Court (2018) 29 Cal.App.5th 1009, 1035

In re Miguel R. (2024) 100 Cal.App.5th 152, 167

In re E.P. (2023) 89 Cal.App.5th 409, 417

Conservatorship of O.B. (2020) 9 Cal.5th 989, 998, fn. 2

In re S.S. (2023) 89 Cal.App.5th 1277, 1286

Sixth Holding:

We review the juvenile court’s ruling on a transfer motion for abuse of discretion. The court’s factual findings are reviewed for substantial evidence, and its legal conclusions are reviewed de novo.

A decision based on insufficient evidence or the court’s erroneous understanding of applicable law is subject to reversal. But we do not reweigh the evidence and we do not substitute our discretion for the discretion exercised by the trial court.

We draw all reasonable inferences in support of the court’s findings, not against them. We are concerned only with whether the circumstances reasonably justify the trier of fact’s findings. When evidence reasonably justifies the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.

Authority:

In re Miguel R. (2024) 100 Cal.App.5th 152, 165, 169

Kevin P. v. Superior Court (2020) 57 Cal.App.5th 173, 187

In re J.S. (2024) 105 Cal.App.5th 205, 211

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