Category Archives: Discretion

Discretion, Duty of the court, Juveniles, Standard of review

Case: 000415

Posted on by Gary McCurdy

Error and/or relief

The court failed to show it recognized and exercised its discretion to designate second degree burglary as a felony or a misdemeanor, and the program condition of probation delegated impermissibly broad discretion to the probation officer

First Holding:

Second degree burglary is a “wobbler,” that is, an offense that may be punished as either a felony or a misdemeanor. This determination is important not only because felonies are subject to longer periods of confinement, but also because felony convictions have additional adverse consequences, including use without limitation for impeachment under Proposition 8 in subsequent criminal proceedings, enhancement of sentences, and the general blight upon the character of persons convicted of felonies. To ensure that juvenile courts are aware of their discretion to charge wobblers as misdemeanors and that they consciously choose to treat wobblers committed by juveniles as felonies, juvenile courts are required to expressly declare how they are treating such offenses. If the minor is found to have committed an offense which would in the case of an adult be punishable alternatively as a felony or a misdemeanor, the court shall declare the offense to be a misdemeanor or felony.

Authority:

WIC 707

People v. Williams (2010) 49 Cal.4th 405, 461, fn. 6

In re Manzy W. (1997) 14 Cal.4th 1199, 1207, 1209

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

Second Holding:

Although remand is not automatically required when a juvenile court fails to expressly declare that a wobbler is a felony or misdemeanor, to establish prejudice a juvenile need not show a reasonable probability of a more favorable outcome. Also, challenges under Welfare and Institutions Code section 702 are not forfeited by failure to object at trial. Instead, in this context, the key issue is whether the record as a whole establishes that the juvenile court was aware of its discretion to treat the offense as a misdemeanor and to state a misdemeanor-length confinement limit. The record in this case does not reflect that the court was aware of its discretion to properly exercise it. A minute order may not substitute for a declaration by the juvenile court as to whether an offense is a misdemeanor or a felony.

Authority:

In re F.M. (2023) 14 Cal.5th 701, 704, 711-714, 717

In re Manzy W. (1997) 14 Cal.4th 1199, 1209

Third Holding:

We review juvenile placement decisions for abuse of discretion. It was not an abuse of discretion to order the minor to be placed in a secure facility.

Authority:

In re Nicole H. (2016) 244 Cal.App.4th 1150, 1154

Fourth Holding:

In placing the minor in a secure facility, the juvenile court imposed a number of terms and conditions, including a requirement that he participate in and complete any appropriate programs as directed by [his] Probation Officer. We review orders of this nature de novo. This condition is an improper delegation of judicial authority. Probation conditions may be challenged for the first time on appeal if they are challenged as unconstitutional on their face and the challenge therefore presents a pure question of law.

Authority:

In re Sheena K. (2007) 40 Cal.4th 875, 888

Fifth Holding:

Although juvenile courts have greater discretion to formulate probation terms than adult criminal courts, their discretion to delegate authority is restricted by the separation-of-powers doctrine. Under the California Constitution, separation of powers does not mean an entire or complete separation of powers or functions, which would be impracticable, if not impossible. Thus, a court may delegate to a probation officer authority to specify the details necessary to effectuate the court’s probation conditions. However, the separation-of-powers doctrine limits the delegation of judicial authority to nonjudicial officers, especially in the absence of judicial supervision and review of the exercise of that authority. Consequently, a court may not delegate complete discretion over a significant aspect of the court’s legal control. To satisfy the separation-of-powers doctrine, a court delegating judicial authority to a probation officer must dictate the basic policy of a condition of probation.

Authority:

In re Victor L. (2010) 182 Cal.App.4th 902, 910, 919

In re D.N. (2022) 14 Cal.5th 202, 208-209, 212

People v. Smith (2022) 79 Cal.App.5th 897, 902, 903 [holding impermissible delegation of authority permitting probation officer to choose between residential and outpatient substance abuse programs]

People v. O’Neal (2008) 165 Cal.App.4th 1351, 1359 [the court’s order cannot be entirely open-ended]

People v. Leon (2010) 181 Cal.App.4th 943, 952 [holding impermissible delegation of authority permitting probation officer to authorize probationer to attend court proceedings and otherwise barring probationer from attending court proceedings unless a party or witness]

Discretion, Jury trial, Sixth Amendment, Statutory interpretation

Case: 000407

Posted on by Gary McCurdy

Error and/or relief

Although the defendant initially decided not to testify at his trial, he changed his mind just before oral argument, after the court granted the prosecution’s motion to dismiss one of the counts and denied the defense motion for acquittal. As the People concede, it was error for the court to deny his request.

First Holding:

It cannot be doubted that a defendant in a criminal case has the right to take the witness stand and to testify in his or her own defense.

Authority:

Rock v. Arkansas (1987) 483 U.S. 44, 49

Second Holding:

After a litigant rests their case, the trial court has wide discretion to reopen a criminal matter to receive additional evidence. When this court reviews a trial court’s decision to preclude the defense from reopening the case to present additional evidence, we must consider four factors: (1) The stage the proceedings had reached when the motion was made; (2) the defendant’s diligence (or lack thereof) in presenting the new evidence; (3) the prospect that the jury would accord the new evidence undue emphasis; and (4) the significance of the evidence. The trial court’s denial of the defendant’s request to testify is subject to the harmless beyond a reasonable doubt standard enunciated in Chapman.

Authority:

People v. Jones (2012) 54 Cal.4th 1, 66

People v. Masters (2016) 62 Cal.4th 1019, 1069

Chapman v. California (1967) 386 U.S. 18, 24

People v. Allen (2008) 44 Cal.4th 843, 871–872

Third Holding:

With respect to the first factor, the state of the proceeding, when the defendant has recently rested his case, closing argument has not begun, and the jury has not been instructed, granting defendant’s request does not entail any great inconvenience. Only 25 minutes passed between when the defense rested and when the defendant expressed that he wished to testify.

Authority:

People v. Carter (1957) 48 Cal.2d 737, 757

Fourth Holding:

As to the defendant’s diligence, the trial court asserted it could not reopen the case because the defense had moved for acquittal, and the prosecution had dismissed count 2. This rationale is not supported by the law. Section 1118.1 provides, in relevant part, that if a motion for judgment of acquittal at the close of the evidence offered by the prosecution is not granted, the defendant may offer evidence without first having reserved that right. Here, the court took the defendant’s waiver and allowed the defense to rest before hearing its motion for acquittal. Thus, when the defendant decided to testify, the defense had to make a motion to reopen, which the court denied. Under section 1118.1, the court should have ruled on both the motion for acquittal and the prosecutor’s motion to dismiss before inquiring about the defendant’s decision to testify. Had this procedure been followed, the defendant would have had the opportunity to offer evidence after the denial of the motion for judgment of acquittal.

Authority:

PEN 1118.1

Fifth Holding:

The third factor is whether reopening the case will cause the jury to give undue emphasis to the new evidence. A jury may accord undue weight to evidence which is admitted close to the time deliberations begin. Here, at the time the defendant changed his mind, the jury had not been told whether he intended to testify. Further, although the court had advised the jury that the presentation of evidence was complete, that advisement occurred only shortly before the defendant changed his mind. For these reasons, we have no reason to believe that the jury would have afforded undue weight to his testimony if the court had reopened the defense case and this factor also shows an abuse of discretion.

Authority:

People v. Funes (1994) 23 Cal.App.4th 1506, 1521

Sixth Holding:

The final factor, the significance of the evidence, also shows error by the trial court. The most important witness for the defense in many criminal cases is the defendant himself. This was not a lopsided case with overwhelming and incontrovertible evidence of guilt, as demonstrated by the jury’s acquittal on count 1. Courts must evaluate whether the interests served by restricting a defendant’s right to testify justify the limitation imposed on this most basic right of a defendant in a criminal case—to present his own version of events in his own words. Here, the trial was relatively short and involved a single defendant, and the jury instructions and closing arguments had not yet occurred at the time Mendoza made his request. The defendant’s testimony may have been highly significant and could have altered the outcome of the case. Under this four-factor test, the court’s decision constituted an abuse of its discretion.

Authority:

Rock v. Arkansas (1987) 483 U.S. 44, 51-52, 56

Seventh Holding:

Finally, as the parties agree, the error was not harmless beyond a reasonable doubt. The jury deliberated for over three hours and acquitted the defendant of count 1, suggesting it entertained doubts about at least certain aspects of the prosecution’s case. It cannot be said that the jury necessarily would have reached the same result if the court had permitted the defendant to testify.

Authority:

Chapman v. California (1967) 386 U.S. 18, 24

Discretion, Duty of the court, Standard of review

Case: 000392

Posted on by Gary McCurdy

Error and/or relief

The trial court applied an incorrect legal standard in ruling on the defendant’s petition seeking mental health diversion. We thus conditionally vacate defendant’s no contest plea, conditionally reverse the judgment, and remand the matter for further proceedings consistent with section 1001.36.

First Holding:

We review a trial court’s order denying mental health diversion for abuse of discretion and its factual findings for substantial evidence. 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. 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 the law and followed it. But where a court’s ruling clearly expresses the legal and factual basis for its resolution of controverted issues, an appellate court will not imply findings the trial court did not make.

Authority:

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

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

Second Holding:

Section 1001.36(b)(1)(2) provides that a defendant is eligible for mental health diversion if (1) they present evidence that in the last five years they have been diagnosed by a qualified mental health expert with a mental disorder as identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders, and (2) their mental disorder was a significant factor in the commission of the charged offense.

Authority:

PEN 1001.36(b)

Third Holding:

If a defendant satisfies the eligibility requirements in section 1001.36(b), the court then must consider whether the defendant is suitable for diversion based on the following criteria set forth in section 1001.36(c): (1) In the opinion of a qualified mental health expert, the defendant’s symptoms of the mental disorder that caused, contributed to, or motivated the defendant’s criminal behavior would respond to mental health treatment; (2) The defendant consents to diversion and waives their right to a speedy trial; (3) 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(c)

Fourth Holding:

A diversion order is expressly discretionary with the court, even when all of the criteria are met. However, this residual discretion must be exercised consistent with the principles and purpose of the governing law. The stated purpose of mental health diversion is to keep people with mental disorders from entering and reentering the criminal justice system while protecting public safety, to give counties discretion in developing and implementing diversion across a continuum of care settings, and to provide mental health rehabilitative services. Legislative history confirms there is 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:

Vaughn v. Superior Court (2024) 105 Cal.App.5th 124, 135

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

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

Fifth Holding:

The record shows that the trial court’s ruling failed to apply the correct legal standards to defendant’s diversion request. After finding defendant eligible, the court denied him diversion because he was unsuitable based on the determination that he targeted vulnerable people. This ruling rests on a legal error because the court did not apply the four statutory suitability criteria found in section 1001.36(c). Additionally, denial of mental health diversion using a court’s residual discretion should be limited to those situations where the purposes of the statute would not be achieved.

Here, the trial court relied on its observation that defendant targeted vulnerable victims but failed to tie that observation to achieving the purposes of the statute, and the strong legislative preference for treatment of mental health disorders because of the benefits of such treatment to both the offending individual and the community. By applying the wrong legal standard, the trial court abused its discretion in denying defendant’s motion for mental health diversion.

Authority:

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]

Vaughn v. Superior Court (2024) 105 Cal.App.5th 124, 138

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

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

Discretion, Standard of review

Case: 000371

Posted on by Gary McCurdy

Error and/or relief

The trial court improperly denied the defendant’s request for pretrial mental health diversion under Penal Code section 1001.36 by applying the wrong standard in determining that he did not satisfy the statute’s public safety requirement. Accordingly, we conditionally reverse the judgment and remand to the trial court.

First Holding:

A trial court may grant a defendant pretrial mental health diversion if the defendant has a qualifying mental health disorder. The court has discretion to grant pretrial diversion if the defendant satisfies the eligibility requirements for pretrial diversion set forth in the statute and the court finds that the defendant is suitable for that diversion under the factors set forth in the statute. A defendant is eligible for pretrial diversion if (1) the defendant has been diagnosed with a qualifying mental disorder; and (2) the defendant’s mental disorder was a significant factor in the commission of the charged offense.

Authority:

PEN 1001.36

People v. Frahs (2020) 9 Cal.5th 618, 626–627

Second Holding:

For any defendant who satisfies the eligibility requirements, the court must then find the defendant is suitable for pretrial diversion if all the following criteria are met: (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; (3) The defendant agrees to comply with treatment as a condition of diversion; (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(c)

Third Holding:

Section 1170.18, in turn, 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). Thus, a trial court must determine whether the defendant is likely to commit an offense known colloquially as a “super strike.” Qualifying super strikes include murder, attempted murder, solicitation to commit murder, assault with a machine gun on a police officer, possession of a weapon of mass destruction, and any serious or violent felony punishable by death or life imprisonment.

Authority:

PEN 1170.18(c)

PEN 667(e)(2)(C)(iv)

People v. Whitmill (2022) 86 Cal.App.5th 1138, 1149, 1150-1151

People v. Bunas (2022) 79 Cal.App.5th 840, 851, fn. 11

Fourth Holding:

Mental health diversion is discretionary, not mandatory, even if all the requirements are met. But this residual discretion must be exercised consistently with the principles and purpose of the law, which 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:

PEN 1001.36(a)

PEN 1001.35

People v. Gerson (2022) 80 Cal.App.5th 1067, 1080

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

Fifth 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.

Authority:

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

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

Sixth Holding:

The trial court’s comments, coupled with the fact the court did not expressly find a likelihood that the defendant would commit a super strike, suggest the court was expanding the meaning of “public safety” in section 1001.36 beyond the likelihood that the defendant will commit a limited subset of violent felonies. This was improper.

Authority:

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

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 896–897 [trial courts cannot create an alternative meaning of ‘public safety’ inconsistent with sec. 1001.36(c)(4)]

Seventh Holding:

We do not find the Watson standard of prejudice applicable here. Under the Watson test, an error is harmless unless it is reasonably probable the outcome would have been different in the absence of the error. The Watson standard is appropriate in circumstances where the trial court understood the nature of its discretion but, for example, relied on an improper factor in exercising that discretion or failed to state its reasoning. It does not apply where the court was unaware of the extent of its lawful authority in a particular context, because determining what choice the trial court is likely to make in the first instance is far more speculative.

Because the record suggests the trial court did not understand that its discretion in deciding the defendant’s motion was constrained by section 1001.36’s narrow definition of public safety, we cannot be confident that the court was aware of the scope of its discretion under section 1001.36. Defendants are entitled to decisions made in the exercise of the informed discretion” of the court. A court that is unaware of the scope of its discretionary powers cannot exercise that informed discretion. The appropriate remedy in such circumstances 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. The Watson standard is thus inapplicable.

Authority:

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

People v. McDaniels (2018) 22 Cal.App.5th 420, 426

In re F.M. (2023) 14 Cal.5th 701, 716

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

People v. Doron (2023) 95 Cal.App.5th 1, 9–10 [concluding remand was required under Gutierrez where trial court did not apply correct standard in denying defendant’s motion for mental health diversion]

People v. Lynch (2024) 16 Cal.5th 730, 774 [Gutierrez standard applied where trial court was unaware that its discretion to select a prison sentence was constrained by a presumption against the upper term]

Amelioration, Discretion, Sentencing

Case: 000361

Posted on by Gary McCurdy

Error and/or relief

After the trial court denied the defendant’s request at the section 1172.75 resentencing hearing to resentence him on one of his nonserious felony counts under the Three Strikes Reform Act of 2012 (thus reducing his Three Strikes sentence of 25 years to life on that count to a doubled determinate term), the Supreme Court concluded that the Reform Act does apply, subject to the finding of unreasonable risk to public safety. The matter is remanded for resentencing consideration accordingly.

First Holding:

As a matter of constitutional avoidance, section 1172.75 incorporates section 1170.126’s discretionary public safety override as a condition for nonserious, nonviolent third strike offenders to obtain resentencing under the revised penalty provisions of the Reform Act. The case must be remanded for the superior court to determine whether sentencing the defendant under the revised penalty provisions of the Reform Act would pose an unreasonable risk of danger to public safety. If it is so determined, the superior court must reimpose the indeterminate term. If the superior court does not determine that resentencing the defendant would pose an unreasonable risk of danger to public safety, and the defendant is otherwise eligible under the Reform Act, the court shall resentence the defendant pursuant to the revised penalty provisions of the Reform Act.

Authority:

People v. Superior Court (Guevara) (2025) 18 Cal.5th 838, 878

Second Holding:

The superior court did not have the benefit of Guevara, meaning that it was not fully aware of the scope of its discretionary powers when it resentenced the defendant. We remand for resentencing because the record does not clearly indicate 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