Category Archives: Discretion

Appellate Principles, Discretion, Jury trial, Sixth Amendment, Standard of review, Sufficiency of and substantial evidence

Case 000746

Posted on by Gary McCurdy

Error and/or relief

The trial court erred by discharging Juror No. 1 without good cause in violation of his rights under the Sixth Amendment. Our review of the record does not reveal it was a demonstrable reality that the discharged juror refused to deliberate. Rather, the juror listened to all the evidence, participated to some extent in the discussions in the jury room, and remained willing and able to vote concerning the verdict. The judgment is reversed.

First Holding:

If at any time, whether before or after the final submission of the case to the jury, a juror dies or becomes ill, or upon other good cause shown to the court is found to be unable to perform his or her duty, or if a juror requests a discharge and good cause appears therefor, the court may order the juror to be discharged. In most circumstances, section 1089 is applied to remove a juror “who becomes physically or emotionally unable to continue to serve as a juror due to illness or other circumstances. However, section 1089 also has been applied “to permit the removal of a juror who refuses to deliberate, on the theory that such a juror is unable to perform his duty.

Authority:

PEN 1089

People v. Cleveland (2001) 25 Cal.4th 466, 474

Second Holding:

The removal of a seated juror for failing to deliberate is a serious matter that implicates a defendant’s state and federal constitutional right to a unanimous decision by the jury. Accordingly, great caution is required when deciding to excuse a sitting juror. The requirement of a unanimous criminal verdict is an important safeguard, long recognized in American jurisprudence. This safeguard rests on the premise that each individual juror must exercise his or her own judgment in evaluating the case. The fact that other jurors may disagree with a panel member’s conclusions, or find disagreement frustrating, does not necessarily establish misconduct.

Authority:

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

People v. Allen and Johnson (2011) 53 Cal.4th 60, 71

Third Holding:

If a juror’s willingness or ability to continue deliberating is unclear, the trial court must take care that its investigation is neither too cursory nor intrudes too deeply into the jury’s deliberative process to avoid invading the sanctity of the deliberations or creating a coercive effect on those deliberations.

The circumstance that a juror does not deliberate well or relies upon faulty logic or analysis does not constitute a refusal to deliberate and is not a ground for discharge. Similarly, the circumstance that a juror disagrees with the majority of the jury as to what the evidence shows, or how the law should be applied to the facts, or the manner in which deliberations should be conducted does not constitute a refusal to deliberate and is not a ground for discharge.

Authority:

People v. Cleveland (2001) 25 Cal.4th 466, 485

Fourth Holding:

When reviewing the dismissal of a juror, the California Supreme Court has adopted a heightened standard of review that protects the defendant’s fundamental rights to due process and a fair trial. The juror’s inability to perform his or her duty must appear in the record as a demonstrable reality. This test is more comprehensive and less deferential than the substantial evidence test. Under both tests, the appellate court reviews the entire record and does not reweigh the evidence.

However, under the substantial evidence test, the court reviews the record in the light most favorable to the judgment and upholds it if there is credible evidence that could reasonably support the trial court’s decision to remove a juror. Under the demonstrable reality test, by contrast, we must determine whether the trial court actually did rely on evidence that supports removing the juror.

This heightened and “ore stringent demonstrable reality standard more fully reflects an appellate court’s obligation to protect a defendant’s fundamental rights to due process and to a fair trial by an unbiased jury. Under the more comprehensive and less deferential review applicable here, we consider the reasons that the trial court provided, identify the evidence on which the court actually relied, and determine whether the evidence manifestly supports the court’s conclusion that a juror is refusing to deliberate.

Authority:

People v. Armstrong (2016) 1 Cal.5th 432, 450-451

People v. Barnwell (2007) 41 Cal.4th 1038, 1052, 1053

People v. McGhee (2025) 17 Cal.5th 612, 634 [a juror’s ability to describe to the court the views of the challenged juror showed there was some discussion going on]

People v. Engelman (2002) 28 Cal.4th 436, 446 [Jurors can be expected to disagree, even vehemently, and to attempt to persuade disagreeing fellow jurors by strenuous and sometimes heated means; it is not required that jurors deliberate well or skillfully]

People v. Barton (2020) 56 Cal.App.5th 496, 515 [juror’s refusal to change her mind and her decision to no longer attempt to explain that decision to the other jurors did not amount to misconduct]

Fifth Holding:

An abuse of discretion in discharging a juror under section 1089 requires reversal only if it is reasonably probable that a result more favorable to the defendant would have been reached but for the error.

Authority:

Authority
People v. Bowers (2001) 87 Cal.App.4th 722, 736 [applying the Watson standard]

People v. Watson (1956) 46 Cal.2d 818, 836

People v. Henderson (2022) 78 Cal.App.5th 530, 565 [discussing prejudice requirement]

Sixth Holding:

In some instances, removal of a juror was upheld. In Dixon, the discharged juror was not merely disagreeing with the other jurors. The trial court found that the juror was upset by a relative’s illness or by intimidation by the other jurors, and this emotional state inhibited the juror’s ability to deliberate. Based on its observation of the discharged juror’s demeanor, the court assessed that the juror had not been candid with the court about these effects on her ability to deliberate.

In Lomax, the discharged juror had prejudged the case but refused to share any of his reasoning with the other jurors, and the juror himself had said he was not able to consider the evidence or take part in the deliberations because of his conscientious objection to the death penalty.

In Samuels, discharge of a juror was upheld where the juror was distressed, asked to be removed, and told the court she could not follow her oath and lacked courage to impose the death penalty even if she were convinced the case required it.

Authority:

People v. Diaz (2002) 95 Cal.App.4th 695, 705,

People v. Lomax (2010) 49 Cal.4th 530, 591

People v. Samuels (2005) 36 Cal.4th 96, 131–133

Seventh Holding:

While a jury is instructed to try to achieve a unanimous verdict, the possibility of a hung jury is an inevitable by-product of our unanimous verdict requirement.

Authority:

People v. Barraza (1979) 23 Cal.3d 675, 683

Eighth Holding:

It cannot be said a juror has refused to deliberate so long as a juror is willing and able to listen to the evidence presented in court, to consider the evidence and the judge’s instructions, and to finally come to a conclusion and vote. This is precisely what Juror No. 1 did.

Applying the heightened standard of review that governs our assessment of a trial court’s decision to discharge a juror, and based on our examination of the record as a whole, we conclude that the court abused its discretion in discharging Juror No. 1 because her inability to perform her duty as a juror does not appear in the record as a demonstrable reality.

Authority:

People v. Barton (2020) 56 Cal.App.5th 496, 514

Ninth Holding:

On the facts in this case, there is no double jeopardy bar to retrial of the case.

Authority:

People v. Hernandez (2003) 30 Cal.4th 454 1, 9

Discretion, Due process, Duty of the court, Standard of review

Case 000745

Posted on by Gary McCurdy

Error and/or relief

The trial court abused its discretion and violated his right to due process when it denied a continuance to investigate and file a motion for a new trial after granting his motion to represent himself.

First Holding:

We review a trial court’s decision granting or denying a continuance for an abuse of discretion. Absent a showing of an abuse of discretion and prejudice, we will not reverse the trial court’s decision.

Authority:

People v. Mungia (2008) 44 Cal.4th 1101, 1118

People v. Doolin (2009) 45 Cal.4th 390, 450

Second Holding:

A trial court’s decision that is deemed an abuse of discretion has been described as a decision that exceeds the bounds of reason or as one that is arbitrary, capricious, patently absurd, or even whimsical. A court’s discretion, however, is not a whimsical, uncontrolled power. T

he scope of discretion always resides in the particular law being applied, i.e., in the legal principles governing the subject of the action. The court’s proper exercise of its discretion, therefore, requires knowledge and consideration of the legal principles essential to an informed, intelligent and just decision.

Where a ruling transgresses the confines of the applicable principles of law defining the scope of discretion, the court abuses its discretion.

Authority:

People v. Seigler (2025) 116 Cal.App.5th 596, 609

People v. Jacobs (2007) 156 Cal.App.4th 728, 737

City of Sacramento v. Drew (1989) 207 Cal.App.3d 1287, 1297

People v. Lara (2001) 86 Cal.App.4th 139, 165

Third Holding:

In deciding whether to grant a continuance, trial courts may not exercise their discretion in such a manner as to deprive the defendant or defendant’s counsel of a reasonable opportunity to prepare.

That counsel for a defendant has a right to reasonable opportunity to prepare for a trial is as fundamental as is the right to counsel. The opportunity to prepare is no less fundamental when a defendant elects to proceed pro se.

While it is true that a defendant, who chooses to conduct his defense in pro. per. does so subject to the disabilities normally attendant upon the status as a prisoner, a pro se defendant must be given a reasonable opportunity to prepare a defense.

The denial of a continuance after a trial court grants a defendant’s request for self-representation could deprive a defendant of the opportunity to prepare a defense. To deny him that opportunity would be to render his right to appear in propria persona an empty formality, and in effect deny him the right to counsel.

Therefore, when a trial court grants a defendant’s request to proceed pro se, it has been held an abuse of discretion and a denial of due process to deny a request for a reasonable continuance to allow the in propria persona defendant to prepare a defense.

Authority:

People v. Sakarias (2000) 22 Cal.4th 596, 646

People v. Maddox (1967) 67 Cal.2d 647, 652, 653-655

People v. Cruz (1978) 83 Cal.App.3d 308, 324

People v. Wilkins (1990) 225 Cal.App.3d 299, 304-305

People v. Hill (1983) 148 Cal.App.3d 744, 756, 757

Fourth Holding:

Courts have made an exception only where the record demonstrates the trial court expressly conditioned the granting of an untimely Faretta motion on the defendant’s express waiver of a continuance.

Authority:

Faretta v. California (1975) 422 U.S. 806

People v. Jenkins (2000) 22 Cal.4th 900, 1038 [court warned the defendant that a request for a continuance would be a basis for denying Faretta motion, and the defendant accepted pro se status on the understanding that no additional time would be granted]

People v. Clark (1992) 3 Cal.4th 41, 110 [court granted Faretta motion only after the defendant “expressly represented he was able to proceed without a continuance], overruled on other grounds in People v. Pearson (2013) 56 Cal.4th 393, 462

People v. Rudd (1998) 63 Cal.App.4th 620, 626 [Faretta motion granted only after the defendant expressly stated he would be able to proceed without a continuance]

Fifth Holding:

The denial of a continuance may be so arbitrary as to deny due process. There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. Instead, the answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied.

Authority:

People v. Beames (2007) 40 Cal.4th 907, 921

Sixth Holding:

The trial court has broad discretion in ruling on a new trial motion, and its decision will be disturbed only for clear abuse of that discretion. Such an abuse of discretion occurs when the court bases its decision on an incorrect legal standard.

Authority:

People v. Iraheta (2014) 227 Cal.App.4th 611, 619

Seventh Holding:

To be sure, the text of section 1181 expressly limits the grant of a motion for new trial to the nine grounds enumerated in the statute. And ineffectiveness of trial counsel is not one of them.

Trial courts, however, have a duty to ensure that a trial is conducted with solicitude for the essential rights of the accused. That includes the right to effective counsel.

The Legislature has no authority to limit by statute a court’s constitutional obligation to ensure that a defendant is accorded due process. Therefore, our Supreme Court has stated that section 1181 should not be read to limit the constitutional duty of trial courts to ensure that defendants be accorded due process of law.

In appropriate circumstances, the trial court should consider a claim of ineffective assistance of counsel in a motion for new trial, because justice is expedited when the issue of counsel’s effectiveness can be resolved promptly at the trial level.

Authority:

People v. Fosselman (1983) 33 Cal.3d 572, 582

People v. Clark (2016) 63 Cal.4th 522, 630

People v. Watts (2018) 22 Cal.App.5th 102, 117

Eighth Holding:

We take issue with the trial court’s determination that the defendant could raise the issues of ineffective assistance of counsel and late discovered evidence on appeal. Unless the record on appeal includes an explanation as to why trial counsel acted or failed to act in the manner challenged, or unless counsel was asked for an explanation and failed to provide one, a claim on appeal that trial counsel was ineffective is at risk of being rejected.

Under the circumstances in this case, the trial court abused its discretion and deprived the defendant of his right to due process. We remand the matter and direct the trial court to grant the defendant a reasonable continuance to investigate and file a motion for new trial.

Authority:

People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267 [claims of ineffective assistance of counsel are often more appropriately litigated in a habeas corpus proceeding]

Discretion, Sentencing

Case 000722

Posted on by Gary McCurdy

Error and/or relief

A jury found the defendant guilty of selling cocaine base and possessing cocaine base for sale. Under section 654, it was error to sentence the defendant on each, to run concurrently. The sentence on one of the counts must be stayed.

First Holding:

Section 654 prohibits multiple punishment for the same act or indivisible course of conduct. Before 2022, when a single act or omission was punishable under multiple provisions, the court was required to impose sentence under the provision carrying the longest potential term. Effective January 1, 2022, Assembly Bill No. 518 amended section 654 to afford trial courts discretion to impose punishment under either applicable provision.

Authority:

PEN 654(a)

People v. Hester (2000) 22 Cal.4th 290, 294

Second Holding:

Multiple punishments violate section 654 because the defendant’s possession of cocaine base for sale and the sale of cocaine base arose from an indivisible course of conduct with a single objective. Under the amended statute, the trial court has discretion to impose the sentence on either count 1 or count 2, including the option of selecting the shorter term.

Authority:

People v. Mani (2022) 74 Cal.App.5th 343, 379

Appellate Principles, Discretion, Racial Justice Act, Standard of review

Case 000720

Posted on by Gary McCurdy

Error and/or relief

The defendant’s petition for writ of mandate is granted. Filed as a habeas corpus petition, the People aver that the instant petition should be treated as a petition for writ of mandate from the trial court’s denial of the defendant’s discovery motion and concede that the defendant established a plausible factual foundation for discovery.

The People assert, and the defendant agrees, the matter should be remanded for development of the record on the relevant factors governing Racial Justice Act [RJA] discovery and for the trial court to consider those factors in the first instance.

We conclude the trial court misapplied the applicable legal standards and erred by denying the defendant’s motion. We therefore grant the petition, direct the trial court to vacate its denial of the defendant’s discovery motion, and remand for further proceedings consistent with this opinion.

First Holding:

We have the discretion to treat a petition for writ of habeas corpus as a petition for writ of mandate. Writ review is appropriate where a petition raises novel legal issues of widespread interest. The RJA remains fairly new legislation and has been amended several times since its inception. Though laudable in its purposes, the Act has proven challenging to the courts in its implementation. Given there are few appellate decisions interpreting the Act thus far, several appellate courts have found writ review appropriate in addressing issues raised under the RJA.

Authority:

People v. Picklesimer (2010) 48 Cal.4th 330, 340

Escamilla v. Department of Corrections & Rehabilitation (2006) 141 Cal.App.4th 498, 509

Lipton v. Superior Court (1996) 48 Cal.App.4th 1599, 1612

Brandt v. Superior Court (1985) 37 Cal.3d 813, 816

Young v. Superior Court (2022) 79 Cal.App.5th 138, 147, 156 [the RJA’s command is simple, but the implementation is somewhat complex; writ review appropriate to address questions of first impression including how to interpret the RJA’s discovery provision]]

Jackson v. Superior Court (2025) 109 Cal.App.5th 372, 382

McIntosh v. Superior Court (2025) 110 Cal.App.5th 33, 46 [writ of mandate issued and matter remanded for the trial court to determine if the defendant was entitled to the appointment of counsel]

Mosby v. Superior Court (2024) 99 Cal.App.5th 106, 133 [writ of mandate issued, and the trial court’s order denying the petitioner a hearing vacated after the appellate court determined the petitioner met his burden and could proceed to an evidentiary hearing]

Second Holding:

Here, the parties agree without objection that the defendant’s petition for writ of habeas corpus should be treated as a petition for writ of mandate. We therefore exercise our discretion to construe the petition as a petition for writ of mandate of the trial court’s denial of the defendant’s RJA discovery motion and address the court’s order on the merits.

Authority:

People v. Picklesimer (2010) 48 Cal.4th 330, 335

People v. Payne (1988) 202 Cal.App.3d 933, 937 [appeal from nonappealable order treated as application for writ of mandate and addressed on the merits]

Third Holding:

Two courts of appeal have concluded, albeit with different reasoning, that a trial court’s order denying a request for discovery under the RJA is not appealable. Both courts recognized, however, that such an order may be challenged by a petition for writ of mandate.

Authority:

In re Montgomery (2024) 104 Cal.App.5th 1062, 1071–1072, 1076 review dism. Dec. 30, 2025, S287339

People v. Serrano (2024) 106 Cal.App.5th 276, 292, 293, review dism. Dec. 30, 2025, S288202

In re Steele (2004) 32 Cal.4th 682, 692 [denial of a sec. 1054.9 discovery motion may be challenged by a petition for writ of mandate]

Fourth Holding:

A discovery order is generally reviewed for abuse of discretion because management of discovery lies within the sound discretion of the trial court. 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.

The scope of discretion always resides in the particular law being applied. If the court’s decision is influenced by an erroneous understanding of applicable law or reflects an unawareness of the full scope of its discretion, the court has not properly exercised its discretion under the law. Therefore, 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

City of Sacramento v. Drew (1989) 207 Cal.App.3d 1287, 1297

Gonzales v. Superior Court (2024) 108 Cal.App.5th Supp. 36, 55

Sargon Enterprises Inc. v. University of Southern California (2012) 55 Cal.4th 747, 773

Fifth Holding:

Effective January 1, 2021, the Legislature enacted the RJA (Assembly Bill No. 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 section 745 to the Penal Code and amended sections 1473 and 1473.7.

Authority:

AB 2542

PEN 745

PEN 1473

PEN 1473.7

Sixth Holding:

Section 745(a) proclaims 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. It specifies four categories which, if proven by a preponderance of the evidence, constitute a violation of the RJA.

As relevant here, a violation occurs under section 745 (a)(3) where the defendant was charged or convicted of a more serious offense than defendants of other races, ethnicities, or national origins who have engaged in similar conduct and are similarly situated, and the evidence establishes that the prosecution more frequently sought or obtained convictions for more serious offenses against people who share the defendant’s race, ethnicity, or national origin in the county where the convictions were sought or obtained.

Also relevant here, a violation occurs under section 745(a)(4)(A) where a longer or more severe sentence was imposed on the defendant than was imposed on other similarly situated individuals convicted of the same offense, and longer or more severe sentences were more frequently imposed for that offense on people that share the defendant’s race, ethnicity, or national origin than on defendants of other races, ethnicities, or national origins in the county where the sentence was imposed.

Authority:

PEN 745

Seventh Holding:

A defendant in custody may file a petition for writ of habeas corpus alleging a violation of the RJA. Specifically, section 745(b) provides that a defendant may file a motion pursuant to this section, or a petition for writ of habeas corpus or a motion under Section 1473.7, in a court of competent jurisdiction, alleging a violation of subdivision (a). The RJA also amended section 1473, which identifies bases for prosecuting a petition for writ of habeas corpus, to add a subdivision governing the litigation of RJA claims.

Authority:

People v. Wilson (2024) 16 Cal.5th 874, 945

Eighth Holding:

If a habeas petition makes a prima facie showing of entitlement to relief under the RJA, the trial court must issue an order to show cause and hold an evidentiary hearing. If, after a hearing, the court finds a violation of section 745(a) by a preponderance of the evidence, the court shall impose a remedy specific to the violation pursuant to section 745(e).

Authority:

PEN 1473(e)

Ninth Holding:

If a court finds after judgment has been entered that a conviction was sought or obtained in violation of section 745(a), the court shall vacate the conviction and sentence, find that it is legally invalid, and order new proceedings consistent with section 745(a). If the court finds that the only violation of section 745(a) that occurred is based on paragraph (3) of section 745(a), the court may modify the judgment to a lesser included or lesser related offense.

If a court finds after judgment has been entered that only the sentence was sought, obtained, or imposed in violation of section 745(a), the court shall vacate the sentence, find that it is legally invalid, and impose a new sentence. On resentencing, the court shall not impose a new sentence greater than that previously imposed.

Authority:

PEN 745(e)

Tenth Holding:

The RJA contains a discovery provision in section 745(d). If a defendant believes a violation of the RJA has occurred, he or she may file a motion requesting disclosure to the defense of all evidence relevant to a potential violation of subdivision (a) in the possession or control of the state. Upon a showing of good cause, the court shall order the records to be released.

Authority:

PEN 745(d)

Eleventh Holding:

In Young, the Court of Appeal addressed what constitutes good cause for purposes of discovery under section 745(d). The court conducted a comprehensive analysis of the RJA’s enactment, as well as general provisions governing discovery in criminal cases.

Drawing on the Pitchess standard for discovery of law enforcement personnel records, the Young court held that in order to establish good cause for discovery under the RJA, 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.

This standard for discovery under section 745(d) is even more relaxed than the Pitchess standard in two respects. First, while a Pitchess motion must be accompanied by an affidavit setting forth a reasonable belief that the requested discovery is material to the subject matter of the case, there is no comparable affidavit requirement for discovery under the RJA. Second, unlike in a Pitchess motion, an RJA discovery motion has no materiality requirement, at least not in the sense that the defendant must show a logical link between some defense and a pending charge.

Authority:

Young v. Superior Court (2022) 79 Cal.App.5th 138, 149-160

Pitchess v. Superior Court (1974) 11 Cal.3d 531

Twelfth Holding:

The RJA’s counterpart to Pitchess materiality is relevance to a potential violation of section 745(a). Since a section 745(a) violation may be proved up in several different ways based on a variety of direct or circumstantial evidence of discrimination under subdivision (a)(1)–(4), the threshold showing for good cause must be commensurately broad and flexible.

The limiting factor is relevance in the discovery sense—that is, each request for disclosure must be reasonably calculated to lead to discovery of admissible evidence probative of a section 745(a) violation. This subject matter limitation on the scope of discoverable material creates an outer boundary that, if crossed, may justify an order narrowing or otherwise limiting the obligation to respond. And as always in the context of discovery, the trial court has ample discretion to manage where the discovery-relevance boundary lies.

Authority:

Young v. Superior Court (2022) 79 Cal.App.5th 138, 160

Thirteenth Holding:

The Young court found support for its articulated good cause standard for discovery in the escalating burdens of proof within section 745. 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. Accordingly, 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:

Young v. Superior Court (2022) 79 Cal.App.5th 138, 160-161, 168-169

Gonzales v. Superior Court (2024) 108 Cal.App.5th Supp. 36, 61

Discretion, Standard of review

Case 000672

Posted on by Gary McCurdy

Error and/or relief

The trial court abused its discretion in denying his motion for mental health diversion because substantial evidence does not support the trial court’s finding that he posed an unreasonable risk of danger to public safety, as defined under section 1001.36.

First Holding:

In 2018, the Legislature enacted sections 1001.35 and 1001.36 to create a pretrial diversion program for defendants with certain mental health disorders. Pretrial diversion allows for the suspension of criminal proceedings and potential dismissal of charges upon successful completion of mental health treatment. The statute expressly promotes increased diversion of individuals with mental disorders to mitigate the individuals’ entry and reentry into the criminal justice system while protecting public safety.

Authority:

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

Second Holding:

As presently enacted, section 1001.36(b) provides that a defendant is eligible for pretrial diversion if two criteria are met.

First, the defendant has been diagnosed with a specified mental disorder within the last five years by a qualified mental health expert.

Second, the defendant’s mental disorder was a significant factor in the commission of the charged offense. 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:

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

Third Holding:

If a defendant meets these eligibility requirements, the court also must find that the defendant is suitable for pretrial diversion based on satisfaction of the following criteria: (1) In the opinion of a qualified mental health expert, the defendant’s symptoms of the mental disorder causing, contributing to, or motivating the criminal behavior would respond to mental health treatment. (2) The defendant consents to diversion and waives the defendant’s right to a speedy trial. The defendant agrees to comply with treatment as a condition of diversion. And (4) The defendant will not pose an unreasonable risk of danger to public safety, as defined in Section 1170.18, if treated in the community.

Authority:

PEN 1001.36(b)

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

Fourth Holding:

Section 1170.18 defines “unreasonable risk of danger to public safety” as an unreasonable risk that the petitioner will commit a new violent felony within the meaning of section 667(e)(2)(C)(iv). That provision of section 667 sets forth eight categories of offenses that are commonly referred to as “super strikes,” including any homicide offense, and including any attempted homicide offense, defined in sections 187 to 191.5, inclusive.

Authority:

People v. Moine (2021) 62 Cal.App.5th 440, 449 [noting that the “super strikes” include murder and attempted murder]

Fifth Holding:

Ultimately, however, diversion under section 1001.36 is discretionary, not mandatory, even if all the statutory requirements are met.

Authority:

People v. Qualkinbush (2022) 79 Cal.App.5th 879, 887

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

Sixth Holding:

We review a trial court’s ruling on a petition for pretrial 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 bases its decision on express or implied factual findings that are not supported by substantial evidence.

In addition, we review a trial court’s factual findings in support of its ruling for substantial evidence.

On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends.

Authority:

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

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

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

Seventh Holding:

Where the court chooses to exercise this residual discretion to deny diversion, its statement of reasons should reflect consideration of the underlying purposes of the statute and explain why diversion would not meet those goals. Further, 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, 893