Category Archives: Discretion

Discretion, Probation Parole PRCS, Sentencing, Standard of review

Case 000815

Posted on by Gary McCurdy

Error and/or relief

It was error to impose a condition of probation that the defendant must submit to chemical testing for the use of alcohol at any time as directed by probation officer or other law enforcement officer.

First Holding:

As an initial matter, we address and reject the Attorney General’s argument that the defendant’s failure to object to the alcohol testing condition forfeited the issue on appeal. Neither forfeiture nor application of the forfeiture rule is automatic, and appellate courts have discretion to review otherwise forfeited challenges. Here, we exercise our right to decide the appeal on its merits, in order to eliminate the need to address the defendant’s alternative ineffective assistance of counsel claim. We now turn to the reasonableness of condition

Authority:

People v. McCullough (2013) 56 Cal.4th 589, 593

In re Victor L. (2010) 182 Cal.App.4th 902, 928

Second Holding:

The defendant challenges the imposition of probation condition 13, which required him to submit to alcohol testing, as unreasonable under Lent. He contends the condition does not make sense because the trial court struck condition 12 that prohibited him from consuming or possessing alcohol.

Authority:

People v. Lent (1975) 15 Cal.3d 481

Third Holding:

We review conditions of probation for abuse of discretion. That is, a reviewing court will disturb the trial court’s decision to impose a particular condition of probation only if, under all the circumstances, that choice is arbitrary and capricious and is wholly unreasonable.

Authority:

People v. Olguin (2008) 45 Cal.4th 375, 379

People v. Moran (2016) 1 Cal.5th 398, 403

Fourth Holding:

A condition of probation will not be held invalid unless it ‘(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality. The Lent test is conjunctive—all three prongs must be satisfied before a reviewing court will invalidate a probation term.

The conditions of probation aimed at rehabilitating the offender need not be so strictly tied to the offender’s precise crime as long as they are reasonably directed at curbing an offender’s future criminality. But there must be a strong connection between the burdens imposed by the challenged condition and a probationer’s criminal conduct or personal history.

Authority:

People v. Lent (1975) 15 Cal.3d 481, 486

People v. Olguin (2008) 45 Cal.4th 375, 379

In re Ricardo P. (2019) 7 Cal.5th 1113, 1120

Fifth Holding:

Notably, when asked to strike the condition requiring the defendant to abstain from drinking alcohol, the sentencing court freely did so without any apparent reservation. This striking shows the court was not concerned that the defendant’s alcohol consumption had the potential for abuse or was likely to lead to future criminality.

As such, because the defendant was allowed to possess and consume alcohol, there was no rational need to test the defendant for alcohol consumption as a condition of probation. Therefore, we conclude the testing condition here has no deterrent effect on the defendant’s future criminality and is unreasonable.

Authority:

People v. Kiddoo (1990) 225 Cal.App.3d 922, 928, disapproved on other grounds in People v. Welch (1993) 5 Cal.4th 228, 236–237 [court struck a probation condition that appellant not possess or consume alcohol or frequent places where alcohol was sold because there was no factual indication in the record that the proscribed behavior is reasonably related to future criminal behavior]

Sixth Holding:

Because the court’s imposition of condition 13 was therefore an abuse of discretion, we order it stricken.

Authority:

In re Malik J. (2015) 240 Cal.App.4th 896, 901 [In an appropriate case, a probation condition that is not sufficiently precise or narrowly drawn may be modified in this court and affirmed as modified]

Appellate Principles, Discretion, Sentencing, Standard of review

Case 000811

Posted on by Gary McCurdy

Error and/or relief

It was error for the court to order a stay-away order upon sentencing the defendant. Otherwise, we affirm the court’s sentencing choices.

First Holding:

Under section 136.2, when the court has a good cause belief that harm to, or intimidation or dissuasion of, a victim or witness has occurred or is reasonably likely to occur, the court is authorized to issue a restraining order. Orders made under section 136.2 are operative only during the pendency of criminal proceedings and as prejudgment orders. The only purpose of a section 136.2 protective order is to protect victims and witnesses in connection with the criminal proceeding in which the restraining order is issued in order to allow participation without fear of reprisal.

Authority:

PEN 136.2

People v. Scott (2012) 203 Cal.App.4th 1303, 1324–1325

People v. Ponce (2009) 173 Cal.App.4th 378, 383, 384 [Where the Legislature authorizes a specific variety of available procedures, the courts should use them and should normally refrain from exercising their inherent powers to invent alternatives.]

Second Holding:

We also observe that courts must, at the time of sentencing for certain crimes, consider issuing a protective order prohibiting a defendant from contacting a victim. None of these other statutes are applicable in this matter. The order issued against the defendant therefore transcended the authorization of section 136.2 and must be vacated.

Authority:

PEN 136.2(i)(1)

PEN 273.5

PEN 646.9(k)

People v. Stone (2004) 123 Cal.App.4th 153, 160
We review the trial court’s sentencing decisions for an abuse of discretion. Under this standard of review, the trial court’s findings of fact are reviewed for substantial evidence, its conclusions of law are reviewed de novo, and its application of the law to the facts is reversible only if arbitrary and capricious.

Authority:
People v. Sandoval (2007) 41 Cal.4th 825, 847

Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 711–712

Third Holding:

To prove an abuse of discretion, the burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review

Authority:

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

People v. Carmony (2004) 33 Cal.4th 367, 377 [a sentencing court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it]

Fourth Holding:

Section 1170(b)(6) does not mandate a presumption in favor of the lower term in every case in which the defendant generally falls under one of the categories enumerated in the subdivision. Rather, the statute is clear that childhood trauma (or one of the other two categories in subdivision (b)(6)) must be a contributing factor to the offense in order to qualify for a presumption of the low term in sentencing. On this record, we cannot say that the court failed to consider section 1170(b)(6), or that its decision to impose the middle term notwithstanding the provision was so irrational or arbitrary that no reasonable person could agree with it.

Authority:

People v. Fredrickson (2023) 90 Cal.App.5th 984, 988, 991 [In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.]

People v. Hilburn (2023) 93 Cal.App.5th 189, 204, fn. 6

People v. Ramirez (2021) 10 Cal.5th 983 [Absent evidence to the contrary, we presume that the trial court knew the law and followed it]

People v. Carmony (2004) 33 Cal.4th 367, 377

Discretion, Standard of review, Sufficiency of and substantial evidence

Case 000807

Posted on by Gary McCurdy

Error and/or relief

The court’s finding that the People overcame the statutory presumption that the defendant’s mental health diagnosis was a significant factor in the commission of the offenses was not supported by substantial evidence. Therefore, its denial of his application on that basis was an abuse of discretion.

As a result, we conditionally reverse the judgment and remand with instructions for the trial court to find the defendant eligible for diversion and hold a hearing to determine the defendant’s suitability for diversion.

If the court determines the defendant is suitable for diversion, it may grant his application. If the court determines the defendant is not suitable, the defendant’s convictions and sentence shall be reinstated.

First Holding:

We review a trial court’s ruling on an application for mental health diversion for an 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 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

Second Holding:

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

Authority:

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

Third 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. First, 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. Second, 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

Fourth Holding:

To ensure that diversion applies as broadly as possible, the Legislature amended section 1001.36 to include a presumption that a defendant’s mental disorder diagnosis was a significant factor in the commission of the offense if the diagnosis occurred within the past five years. Once the presumption is established, to overcome it, the People must prove by clear and convincing evidence that defendant’s mental disorder was not a motivating, causal, or contributing factor in defendant’s commission of the offense.

Authority:

PEN 1001.36(b)(2)

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

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

Fifth Holding:

Even if a defendant meets the eligibility requirements, before the court can grant a defendant diversion, the court must also find the defendant suitable for diversion using the four criteria outlined in section 1001.36(c). Specifically, the court must find that (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 defendant will not pose an unreasonable risk of danger to public safety if treated in the community.

Authority:

PEN 1001.26(c)

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

Sixth Holding:

Even after finding a defendant eligible and suitable for diversion, however, a trial court may exercise its residual discretion to deny diversion. But this residual discretion must be exercised consistent with the principles and purpose of the governing law. That purpose includes a strong legislative preference for treatment of mental health disorders because of the benefits of such treatment to both the offending individual and the community.

Authority:

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

Seventh Holding:

In 2024, a mental health professional diagnosed the defendant with PTSD, major depressive disorder with psychotic features, and alcohol use disorder. Defendant’s diagnosis established a presumption that his mental health disorder was a significant factor in the commission of the robberies.

In response, the People argued that that it was simply impossible to believe that PTSD or depression caused the defendant and his cohorts to plan the robberies, which were obviously coordinated and planned out. The People offered no evidence, and the trial court did not identify any, establishing by clear and convincing evidence, that defendant’s mental disorder was not a motivating, causal, or contributing factor to defendant’s commission of the offenses. Their speculation about the cause of the robberies is not substantial evidence.

The absence of evidence proving that the defendant’s mental disorder was a factor in the commission of the [robberies] is not substantial evidence supporting a finding by clear and convincing evidence that the defendant’s mental disorder was not a factor in the commission of the offenses.

By finding the presumption was overcome even though the People offered no evidence that would establish that defendant’s mental disorder was not a motivating, causal, or contributing factor to defendant’s commission of the offenses, the trial court effectively shifted the burden to the defendant to affirmatively prove that his mental disorder contributed to the offenses. That is not the showing the statute requires.

Authority:

PEN 1001.36(b)(2)

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

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

Lacour v. Superior Court (2025) 110 Cal.App.5th 391, 404

Eighth Holding:

A court abuses its discretion when it bases its decision on express or implied factual findings that are not supported by substantial evidence. Because substantial evidence does not support the trial court’s finding that the presumption was overcome, it abused its discretion in denying defendant diversion based on that finding.

Authority:

Siam v. Superior Court (2026) 118 Cal.App.5th 67, 81

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

Ninth Holding:

We review the trial court’s factual findings for substantial evidence. A substantial evidence inquiry examines the record in the light most favorable to the judgment and upholds it if the record contains reasonable, credible evidence of solid value upon which a reasonable trier of fact could have relied in reaching the conclusion in question.

Once such evidence is found, the substantial evidence test is satisfied. The trial court found defendant would not pose an unreasonable risk to public safety as defined within the statute. Meaning that he was not likely to commit a super-strike offense if granted diversion. An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge. Because the record contains substantial evidence to support that finding, we do not disturb it.

Authority:

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

People v. Armstrong (2016) 1 Cal.5th 432, 450

People v. Carmony (2004) 33 Cal.4th 367, 377

 

Discretion, Probation Parole PRCS, Sentencing, Statutory interpretation

Case 000801

Posted on by Gary McCurdy

Error and/or relief

The court erred in believing that the defendant was presumptively ineligible for probation. Remanded for resentencing.

First Holding:

All defendants are eligible for probation, in the discretion of the sentencing court, unless a statute provides otherwise. Some statutes bar probation absolutely, while others provide that a defendant is ineligible except in unusual cases where the interests of justice would be served. Here, the trial court apparently relied on the probation report and defense counsel to conclude section 1203(e)(3) rendered the defendant ineligible for probation.

Authority:

People v. Aubrey (1998) 65 Cal.App.4th 279, 282

Second Holding:

Section 1203(e), provides in relevant part, that except in unusual cases in which the interests of justice would best be served if the person is granted probation, probation shall not be granted to any person who willfully inflicted great bodily injury or torture in the perpetration of the crime of which that person has been convicted. By its terms, section 1203(e)(3) renders a defendant conditionally ineligible for probation only when there has been a finding the injury was willful, i.e., intentional.

Here, there was no such finding, and the People concede that the defendant’s no contest plea does not establish that she admitted to willfully inflicting great bodily injury on the victim. Thus, absent any additional findings by the trial court, section 1203(e) did not render her presumptively ineligible for probation, and the trial court erred in applying that presumption.

Authority:

PEN 1203(e)(3)

People v. Lewis (2004) 120 Cal.App.4th 837, 854

Third Holding:

Where the sentencing court bases its determination to deny probation in significant part upon an erroneous impression of the defendant’s legal status, fundamental fairness requires that the defendant be afforded a new hearing and an informed, intelligent and just decision on the basis of the facts. Here, the record demonstrates the trial court misunderstood the scope of its discretion and may have relied upon the error to deny probation. A new sentencing hearing is therefore necessary for the trial court to consider the defendant’s probation request under the appropriate legal standard.

Authority:

People v. Ruiz (1975) 14 Cal.3d 163, 168

People v. Manriquez (1991) 235 Cal.App.3d 1614, 1620

People v. Downey (2000) 82 Cal.App.4th 899, 912 [where a sentence choice is based on an erroneous understanding of the law, the matter must be remanded for an informed determination]

Discretion, Standard of review, Sufficiency of and substantial evidence

Case 000798

Posted on by Gary McCurdy

Error and/or relief

The court erred in denying his petition either because the court either improperly shifted the burden to the defendant to prove his mental disorder was a significant factor in his charged crimes, or because substantial evidence does not support a finding by clear and convincing evidence that his mental disorder was not such a factor.

First Holding:

Penal Code section 1001.36 provides that a defendant in a criminal case is eligible for mental health diversion if he demonstrates: (1) he has been diagnosed with a recognized mental disorder; and (2) that disorder was a significant factor in the commission of the charged crime.

The defendant bears the burden of making a prima facie showing that he or she meets the minimum requirements of eligibility for diversion. However, if the defendant has been diagnosed with a mental disorder, the court shall find that the defendant’s mental disorder was a significant factor in the commission of the offense unless there is clear and convincing evidence that it was not a motivating factor, causal factor, or contributing factor to the defendant’s involvement in the alleged offense.

Authority:

PEN 1001.36(b)(2)

People v. Gerson (2022) 80 Cal.App.5th 1067, 1078–1079

Second Holding:

Additionally, the statute gives the trial court discretion to deny diversion even if the statutory requirements are met. However, this residual discretion must be exercised consistent with the principles and purpose of the governing law.

Authority:

Vaughn v. Superior Court (2024) 105 Cal.App.5th 124, 134

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

Third Holding:

We review the trial court’s denial of mental health diversion for abuse of discretion. A court abuses its discretion when it makes an arbitrary or capricious decision by applying the wrong legal standard or when it bases its decision on express or implied factual findings that are not supported by substantial evidence.

Authority:

People v. Pacheco (2022) 75 Cal.App.5th 207, 213

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

Fourth Holding:

A trial court is not bound by an expert’s testimony and opinion. But even were the court to discount the psychiatrist’s report’s conclusion in its entirety, the absence of evidence proving that petitioner’s mental disorder was a factor in the commission of the offenses is not substantial evidence supporting a finding by clear and convincing evidence that petitioner’s mental disorder was not a factor in the commission of the offenses. It was the prosecution’s burden to present such clear and convincing evidence.

Here, it appears that the court either placed the burden on the defendant to demonstrate his mental disorder was a significant factor in the commission of the charged offenses or found clear and convincing evidence that the mental disorder was not a significant factor. In other words, the court either applied the wrong legal standard or based its decision on a factual finding unsupported by substantial evidence. Either way, reversal is required.

Authority:

In re J.S. (2024) 105 Cal.App.5th 205, 212

In re Scott (2003) 29 Cal.4th 783, 823 [The fact finder determines the facts, not the experts. Indeed, the fact finder may reject even a unanimity of expert opinion]

Lacour v. Superior Court (2025) 110 Cal.App.5th 391, 404

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