Category Archives: Discretion

Discretion, Juveniles, Standard of review, Statutory interpretation

Case: 000133

Posted on by Gary McCurdy

Error and/or relief

In 2000, appellant was sentenced to life in prison without the possibility of parole after being tried as an adult for two murders he committed when he was 17. In 2021, his sentence was recalled under Penal Code section 1170, subdivision (d). The prosecution filed a motion to again transfer appellant’s case from juvenile court to criminal court. The court granted the motion, and appellant challenges that ruling on appeal. We conclude that the court misapprehended one aspect of its discretion, reverse the order transferring appellant to criminal court, and remand for reconsideration of the issue.

First Holding:

In determining at a transfer hearing whether a juvenile should be tried as an adult, the court must consider five statutory factors, one of which is whether the minor can be rehabilitated prior to the expiration of the juvenile court’s jurisdiction. The court stated that juvenile jurisdiction would have ended when appellant turned 25 years old. The court was quite clear that its consideration of the relevant factor was always directed at determining whether appellant would have been rehabilitated by the age of 25.

However, the court was incorrect. The juvenile court may retain jurisdiction over a person who is 25 years of age or older for a period not to exceed two years from the date of disposition if the person is found to be a person described in Section 602 by reason of the commission of an offense listed in subdivision (b) of Welfare and Institutions Code, Section 707. In this instance, the defendant would have been in his 40s two years after disposition hearing held in this case.

Authority:

WIC 707(d)

Second Holding:

When the appellant presents an issue of statutory interpretation, we review it de novo.

Authority:

In re Noah S. (2021) 67 Cal.App.5th 410, 414

Third Holding:

Reversal is required 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. Here, the court did not express how it would have ruled had it known juvenile jurisdiction could have lasted longer. One of the few comments the court made about the defendant’s post-age 25 conduct cuts against a finding of harmlessness. Paraphrased, the court stated that there was no question before it that the defendant has grown as an adult, but that the question was whether or not that growth would have occurred before age 25. It stated that the evidence it considered at the hearing indicates his growth occurred well past the age of 25.

Authority:

People v. Gutierrez (2014) 58 Cal.4th 1354, 139

Fourth Holding:

In order to transfer a minor from juvenile court to criminal court, the court must find by clear and convincing evidence that the minor is not amenable to rehabilitation while under the jurisdiction of the juvenile court.

Authority:

WIC 707(a)(3)

Amelioration, Appellate Principles, Discretion, Plea bargains, Retroactivity, Sentencing, Standard of review

Case: 000130

Posted on by Gary McCurdy

Error and/or relief

Following remand from the defendant’s prior appeal, the trial court declined to strike a firearm enhancement. The court did not realize the impact of recent changes in the law on gang criminal activity, asserting that its jurisdiction was limited to the scope defined in the remittitur (which remanded for reconsideration of the request to dismiss the firearm enhancement). We reverse the judgment and remand the matter for the trial court to rule on defendant’s motion to dismiss the gang enhancements, and to reconsider its determination declining to dismiss the firearm enhancements under section 1385 under the standard more recently articulated by the Supreme Court.

First Holding:

The scope of the superior court’s jurisdiction as defined by a remittitur does not prevent the retroactive application of ameliorative laws. We review associated questions of statutory construction de novo. Whether a statute applies retroactively is a question of statutory construction we review de novo. We review for abuse of discretion the trial court’s exercise of discretion under section 1385(c).

Authority:

People v. Lopez (2025) 17 Cal.5th 388, 396

People v. Burke (2023) 89 Cal.App.5th 237, 242

People v. Brown (2012) 54 Cal.4th 314, 319

People v. Walker (2024) 16 Cal.5th 1024, 1033

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. 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 nine 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.

Authority:

PEN 1385(c)

Third 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

Fourth Holding:

The Legislature amended PC 186.22(g) to redefine the phrase “benefit, promote, further, or assist” a criminal street gang for the purposes of section 186.22. The phrase now means “to provide a common benefit to members of a gang where the common benefit is more than reputational.” Those elemental changes apply retroactively to all nonfinal cases such as this one.

Authority:

PEN 186.22(e)(1)

PEN 186.22(g)

People v. Tran (2022) 13 Cal.5th 1169, 1207

In re Estrada (1965) 63 Cal.2d 740, 745

Fifth Holding:

Where a statute is silent regarding retroactivity, we employ the ordinary presumptions and rules of statutory construction to discern the Legislature’s intent. Ordinarily, statutes are presumed to apply only prospectively, unless the Legislature expressly declares otherwise. Estrada, however, held that an amendment to a statute that lessened punishment for a crime gave rise to an inference of contrary legislative intent; that is, that the Legislature must have intended that the amendment mitigating punishment would apply retroactively to every case to which it constitutionally could apply. The Estrada rule rests on an inference that the Legislature intends an amendment reducing punishment under a criminal statute to apply as broadly as possible, distinguishing only as necessary between sentences that are final and sentences that are not.

Authority:

Californians for Disability Rights v. Mervyn’s, LLC (2006) 39 Cal.4th 223, 230

People v. Burgos (2024) 16 Cal.5th 1, 7

In re Estrada (1965) 63 Cal.2d 740

People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 308

Sixth Holding:

If the trial court exercises its discretion to dismiss the gang enhancements, the prosecution will be entitled to the same remedy as the defense (i.e., withdrawal from the plea agreement) and the trial court may withdraw its approval of the plea agreement as well. In that event, the trial court must restore the parties to the status quo ante, including permitting the prosecution to request to reopen the preliminary hearing and present evidence on the new elements of the gang allegations or to proceed without those charges.

Authority:

People v. Stamps (2020) 9 Cal.5th 685, 707-708

People v. Superior Court (Garcia) (1982) 131 Cal.App.3d 256

Mendoza v. Superior Court (2023) 91 Cal.App.5th 42

Seventh Holding:

Penal Code section 1016.7 provides that, in the interest of justice and to reach a just resolution during plea negotiations, the prosecutor shall consider whether the defendant has experienced psychological, physical, or childhood trauma, whether the defendant is or was a youth at the time of the commission of the offense, and whether any of those considerations contributed to the commission of an alleged offense. The statute defines youth as any person under 26 years of age on the date of the offense. But it is not retroactive. It does not reduce punishment for a criminal offense, create discretion to reduce punishment, narrow the scope of criminal liability, or create a concrete avenue for certain individuals charged with a criminal offense to be treated more leniently or avoid punishment altogether.

Authority:

People v. Burgos (2024) 16 Cal.5th 1, 13

Discretion, Elements of crime, Probation Parole PRCS

Case: 000108

Posted on by Gary McCurdy

Error and/or relief

The court revoked the defendant’s probation and sentenced him to six years in prison. Because we conclude no substantial evidence supports a finding that the defendant willfully failed to appear at the January 1998 hearing and because the September 1998 offense occurred after his probation had ended, we reverse.

First Holding:

When a court summarily revokes a defendant’s probation, the revocation, summary or otherwise, shall serve to toll the running of the period of supervision. However, the tolling provision preserves the trial court’s authority to adjudicate, in a subsequent formal probation violation hearing, whether the probationer violated probation during, but not after, the court-imposed probationary period. In other words, because the defendant’s three-year probation term ended in July 1998, the court could adjudicate after July 1998 whether acts he committed between July 1995 and July 1998 violated his probation, but could not adjudicate whether acts committed after July 1998 violated his probation.

Authority:

PEN 1203.2(a)

People v. Leiva (2013) 56 Cal.4th 498, 502

Second Holding:

Revocation of probation rests in the sound discretion of the court. Although that discretion is very broad, the court may not act arbitrarily or capriciously; its determination must be based upon the facts before it.

Authority:

People v. Zaring (1992) 8 Cal.App.4th 362, 378

Third Holding:

A court abuses its discretion in finding a defendant violated a condition of probation unless the evidence supports the conclusion that the conduct constituted a willful violation of that condition.

Authority:

People v. Leiva (2013) 56 Cal.4th 498, 379

People v. Galvan (2007) 155 Cal.App.4th 978, 982

Fourth Holding:

The facts supporting revocation of probation may be proven by a preponderance of the evidence. However, the evidence must support a conclusion the probationer’s conduct constituted a willful violation of the terms and conditions of probation.

Authority:

People v. Rodriguez (1990) 51 Cal.3d 437, 439

People v. Sem (2014) 229 Cal.App.4th 1176, 1188 [a willful violation is a prerequisite to revoking probation]

Discretion, Sentencing, Standard of review

Case: 000101

Posted on by Gary McCurdy

Error and/or relief

In 2022, defendant was resentenced under Penal Code section 1172.75 and the trial court struck seven years from his determinate term. Defendant appeals, contending the trial court abused its discretion under section 1385 when declining to further reduce defendant’s sentence because the court found he currently posed a danger to public safety. We agree and accordingly vacate defendant’s sentence and remand for a full resentencing.

First Holding:

The court shall dismiss an enhancement if it is in the furtherance of justice to do so.” Section 1385(c)(2) provides: “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.

Authority:

PEN 1385

Second Holding:

We review the trial court’s decision not to strike an enhancement under section 1385 for an abuse of discretion. An abuse of discretion occurs when the trial court, for example, is unaware of its discretion, fails to consider a relevant factor that deserves significant weight, gives significant weight to an irrelevant or impermissible factor, or makes a decision so arbitrary or irrational that no reasonable person could agree with it.

Authority:

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

In re White (2020) 9 Cal.5th 455, 470

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

Third Holding:

The trial court abused its discretion because the plain words of section 1385 do not support the trial court’s singular focus on whether the defendant currently poses a danger and instead focuses on the danger associated with the dismissal of an enhancement.

Authority:

People v. Williams (2018) 19 Cal.App.5th 1057

People v. Gonzalez (2024) 103 Cal.App.5th 215, 228-229

Fourth Holding:

Determining whether resentencing a defendant poses an unreasonable risk of danger to society is necessarily a forward-looking inquiry. When determining whether resentencing poses an unreasonable risk of danger, the trial court must look to when a defendant would be released if the petition is granted and the defendant is resentenced. A defendant who would obtain immediate release if the petition is granted poses a different potential danger to society than a defendant who could be released only in his or her 70s.

Authority:

People v. Williams (2018) 19 Cal.App.5th 1057, 1063

Amelioration, Appellate Principles, Discretion, Sentencing, Standard of review, Statutory interpretation

Case: 000095

Posted on by Gary McCurdy

Error and/or relief

Because the superior court applied an incorrect legal standard in deciding whether to dismiss the five-year enhancement, we reverse the judgment and direct the court to exercise its discretion whether to strike that enhancement and to resentence the defendant.

First Holding:

By its plain terms, section 1172.75 requires a full resentencing, not merely that the trial court strike the newly invalid enhancements.

Authority:

People v. Dixon (2025) 112 Cal.App.5th 236, 243, review granted Oct. 22, 2025, S292223

Second Holding:

We conclude the superior court erred by applying an incorrect legal standard in denying the defendant’s request to dismiss the five-year enhancement for the prior serious felony. Section 1385 provides that the court shall dismiss an enhancement if it is in the furtherance of justice to do so. It also provides that, in exercising its discretion, the court must consider and afford great weight to evidence offered by the defendant to prove any of nine listed mitigating factors, unless the court finds that dismissal of the enhancement would endanger public safety. If the court does not find dismissing an enhancement would endanger public safety, the court must consider whether the defendant has presented evidence of one or more of the mitigating factors listed in section 1385. If so, the court must engage in a holistic balancing with special emphasis on the [nine] enumerated mitigating factors and must dismiss the enhancement unless the 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:

PEN 1385

People v. Walker (2024) 16 Cal.5th 1024, 1033, 1036

Third Holding:

Without the benefit of Walker, decided several months after the resentencing, the superior court did not apply the correct legal standard. It did not find that reducing the sentence by five years would endanger public safety. Nor did it consider dismissing the prior conviction that was more than five years old, instead relying on the fact that the original court found the prior conviction to be true. By deferring to the original trial court on whether to strike the serious felony conviction enhancement, the superior court ignored section 1172.75’s mandate to apply changes in law that reduce sentences or provide for judicial discretion. In 2015 the trial court had to impose the five-year prior serious felony enhancement under section 667, subdivision (a)(1), but effective 2019, SB 1393 gave trial courts discretion to strike that enhancement under section 1385. In addition, section 1172.75 authorized the superior court to consider postconviction factors, such as the defendant’s disciplinary record and rehabilitation while in prison, his age, and his physical condition—factors not available to the trial court in 2015.

Authority:

People v. Carter (2023) 97 Cal.App.5th 960, 968 [simply striking the one-year enhancement imposed under the repealed portion of former section 667.5(b) deprived the defendant of his right to full resentencing under the changes in the law]

People v. Coddington (2023) 96 Cal.App.5th 562, 567 [court erred by failing to provide the defendant with a full resentencing hearing, meaning a hearing in which he could have sought further sentencing relief under at least two other statutes that were enacted after his conviction]

People v. Rogers (2025) 108 Cal.App.5th 340, 361

Fourth Holding:

The superior court’s error was prejudicial because the record does not clearly indicate the court would have reached the same conclusion had it applied the correct legal standard.

Authority:

People v. Salazar (2023) 15 Cal.5th 416, 424 [where the trial court fails to exercise informed discretion, 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]

People v. Gutierrez (2014) 58 Cal.4th 1354, 1391 [same]

People v. Monroe (2022) 85 Cal.App.5th 393, 402 [remand was required where the defendant was entitled to, but did not receive, a full resentencing under the terms of section 1172.75, including the application of any other changes in law that reduce sentences or provide for judicial discretion]

Fifth Holding:

On remand, the superior court should consider whether dismissing the prior serious felony enhancement and reducing the defendant’s sentence from 25 years six months to 20 years six months would endanger public safety. If the court does not make that finding, it should dismiss the enhancement, unless it finds substantial, credible evidence of countervailing factors that neutralize the great weight of any applicable mitigating circumstance enumerated in section 1385(c)(2), including that the enhancement was based on a prior conviction that was more than five years old.

Authority:

People v. Gonzalez (2024) 103 Cal.App.5th 215, 230-231 [in assessing whether dismissing an enhancement would endanger public safety, the trial court should have considered the date on which the defendant could be released if the enhancement was dismissed, not only whether the defendant currently posed a danger to the public]

Sixth Holding:

We review a trial court’s sentencing decisions in a section 1172.75 resentencing proceeding for abuse of discretion.

Authority:

People v. Moseley (2024) 105 Cal.App.5th 870, 874

People v. Garcia (2024) 101 Cal.App.5th 848, 855-856

Seventh Holding:

In reviewing matters of statutory interpretation we review the trial court’s decision de novo.

Authority:

People v. Gonzalez (2024) 107 Cal.App.5th 312, 323

People v. Braden (2023) 14 Cal.5th 791, 804 [The interpretation of a statute presents a question of law that this court reviews de novo]

Abstracts and Minutes, Discretion, Duty of the court, Sentencing, Standard of review

Case 00072

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in imposing the great bodily injury enhancement on count 2 because it did not afford great weight to the mitigating circumstance of the defendant’s prior victimization. The trial court applied the wrong legal standard in declining to dismiss the great bodily injury enhancement. We therefore vacate the sentence and remand for resentencing. Also, the abstract of judgment incorrectly shows murder as in the first degree and must be corrected to show that the conviction was for murder in the second degree.

First Holding:

The trial court shall dismiss an enhancement if it is in the furtherance of justice to do so. In exercising its discretion in this regard, the court shall consider and afford great weight to evidence offered by the defendant to prove certain enumerated mitigating circumstances, and 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. One of the listed mitigating circumstances is the current offense is connected to prior victimization or childhood trauma.

Authority:

PEN 1385

Second Holding:

Absent a finding that dismissal would endanger public safety, a court must assign significant value to the enumerated mitigating circumstances when they are present. In practice, 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, 1038

Third Holding:

We review a trial court’s decisions under section 1385 for abuse of discretion. As relevant here, an abuse of discretion arises if the trial court based its decision on an incorrect legal standard.

Authority:

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

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

Fourth Holding:

When, as here, a sentencing court was not fully aware of the scope of its discretionary powers, 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. Salazar (2023) 15 Cal.5th 416, 425

Fifth Holding:

The abstract of judgment incorrectly states that the defendant was convicted of first degree murder in count 1. When issuing a new abstract of judgment after resentencing, the trial court shall correctly identify the crime in count 1 as second degree murder. [Gary note: the court did not cite any authority for its order to correct the abstract of judgment, likely because it seems so obvious. But there is authority that the court could have cited, some of which I have listed below, even though not cited in the opinion.]

Authority:

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

People v. Mitchell (2001) 26 Cal.4th 181, 185

People v. Zackery (2007) 147 Cal.App.4th 380, 387–388

People v. Gobert (2023) 89 Cal.App.5th 676, 689

People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2

Discretion, Duty of the court

Case 000063

Posted on by Gary McCurdy

Error and/or relief

The trial court abused its discretion in denying the defendant’s request for a continuance (on day of trial), because his application for mental health diversion constituted good cause to do so. We reverse.

First Holding:

As to what is required to show an abuse of discretion, it has been described as a decision that exceeds the bounds of reason or one that is arbitrary, capricious, patently absurd, or even whimsical. But the standard cannot be boiled down to simply calling for reversal only if a ruling appears to be arbitrary, capricious or utterly irrational.

Authority:

People v. Beames (2007) 40 Cal.4th 907, 92

Artus v. Gramercy Towers Condominium Assn. (2022) 76 Cal.App.5th 1043, 1051

People v. Williams (2021) 63 Cal.App.5th 990, 1000

People v. Jacobs (2007) 156 Cal.App.4th 728, 736–738

Second Holding:

The legal component of discretion was explained long ago in Bailey: The discretion intended is not a mental discretion, to be exercised ex gratia, but a legal discretion, to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice.

Authority:

Bailey v. Taaffe (1866) 29 Cal.422, 424

Third Holding:

The decision whether or not to grant a continuance of a matter rests within the sound discretion of the trial court.

Authority:

People v. Navarro (2021) 12 Cal.5th 285, 330

Fourth Holding:

We review the trial court’s denial of a continuance for abuse of discretion. In particular, we decide whether the denial of a continuance was so arbitrary as to violate due process. There are no mechanical tests for doing so

Authority:

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

Ungar v. Sarafite (1964) 376 U.S. 575, 589

Fifth Holding:

In deciding whether good cause exists, courts consider whether the moving party has acted diligently; the anticipated benefits of the continuance; the burden that the continuance would impose on witnesses, jurors, and the court; and above all, whether substantial justice will be accomplished or defeated by a granting of the motion.

Authority:

People v. Reed (2018) 4 Cal.5th 989, 1004

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

People v. Gonzalez (2021) 12 Cal.5th 367, 387

Sixth Holding:

In sum,we recognize that defense counsel was not optimally diligent, and he certainly could have better attended to the procedural details of obtaining a continuance. But this relatively minor lack of diligence did not justify the substantial injustice the court’s order created Where denial of a continuance would result in a manifest injustice, as it did here, the policy disfavoring continuances must give way.

Authority:

Hamilton v. Orange County Sheriff’s Department (2017) 8 Cal.App.5th 759

Discretion, Standard of review

Case 000022

Posted on by Gary McCurdy

Error and/or relief

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

First Holding:

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

Authority:

PEN 1001.36

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

Second Holding:

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

Authority:

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

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

Third Holding:

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

Authority:

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

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

Fourth Holding:

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

Authority:

PEN 1001.36(c)(4)

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

Discretion, Standard of review

Case 000014

Posted on by Gary McCurdy

Error and/or relief

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

First Holding:

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

Authority:

PEN 1001.36(c)

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

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

Second Holding:

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

Authority:

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

Third Holding:

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

Authority:

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

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

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

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

Discretion, Jurisdiction, Sentencing

Case 000009

Posted on by Gary McCurdy

Error and/or relief

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

First Holding:

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

Authority:

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

Second Holding:

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

Authority:

PEN 1170.1(c)

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

Third Holding:

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

Authority:

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

Fourth Holding:

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

Authority:

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

Discretion

Case 000003

Posted on by Gary McCurdy

Error and/or relief:

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

Holding:

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

Authority:

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

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

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

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

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