Category Archives: Discretion

Discretion, Probation Parole PRCS, Sentencing, Standard of review

Case: 000298

Posted on by Gary McCurdy

Error and/or relief

Although a trial court has broad discretion in imposing terms and conditions when sentencing a criminal defendant to probation instead of imprisonment, any conditions imposed must have some relationship to the crime and be designed to prevent future criminality. In this case, one of the probation conditions imposed required defendant to participate in mental health and substance abuse testing and treatment. Not only was this unconnected to the underlying crime, any suggestion in the probation and sentencing report that defendant suffered from mental health or substance abuse issues was wholly unsupported. Therefore, that probation condition must be stricken.

Holding:

A sentencing court has broad discretion to impose probation conditions to foster rehabilitation and to protect public safety pursuant to Penal Code section 1203.1. But such discretion is not unlimited: A condition of probation must serve a purpose specified in the statute and conditions regulating noncriminal conduct must be reasonably related to the crime of which the defendant was convicted or to future criminality. A probation condition will be upheld unless all of the following are true: 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. We review a challenge to the conditions of probation for abuse of discretion.

Authority:

PEN 1203.1

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

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

Discretion, Standard of review

Case: 000294

Posted on by Gary McCurdy

Error and/or relief

The trial court abused its discretion when it found the defendant unsuitable for mental health diversion despite acknowledging he did not pose an unreasonable risk of committing a “super strike.”

First Holding:

Section 1001.36 authorizes pretrial mental health diversion for defendants with qualifying mental health disorders.

Authority:

PEN 1001.36

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

Second Holding:

A trial court’s ruling on a request for mental health diversion is reviewed for abuse of discretion, and the court’s factual findings are reviewed for substantial evidence.

Authority:

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

Third Holding:

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. A trial court further abuses its discretion if its decision is so irrational or arbitrary that no reasonable person could agree with it.

Authority:

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

Fourth Holding:

A defendant is suitable for mental health 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; (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)(1)-(4)

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

Fifth Holding:

Under section 1170.18, an unreasonable risk of danger to public safety is an unreasonable risk that the petitioner will commit a “super strike,” which includes any homicide or attempted homicide offense, any serious or violent felony punishable by life imprisonment or death, and sexually violent offenses.

Authority:

PEN 1170.18(c)

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

Sixth Holding:

A trial court may not deny diversion to an otherwise eligible defendant unless it finds the defendant is likely to commit one of these offenses. In making this determination, the trial court may consider the opinions of the district attorney, the defense, or a qualified mental health expert, and may consider the defendant’s treatment plan, the defendant’s violence and criminal history, the current charged offense, and any other factors that the court deems appropriate.

Authority:

PEN 1001.36(c)(4)

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

Seventh Holding:

The trial court found defendant unsuitable for mental health diversion despite acknowledging that he was not likely to commit a super strike offense. That acknowledgment was reasonable, given that defendant had never previously been convicted of a super strike offense and was not charged with a super strike in the underlying cases. Under the circumstances, there is no substantial evidence to support a conclusion defendant was likely to commit a super strike.

Authority:

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 897

Eighth Holding:

To the extent the trial court was relying on defendant’s history of noncompliance with medication, self-medicating with methamphetamine, his unwillingness to obey court orders, and probation violations, this was also an error. None of these past personal flaws is a reason that the Legislature has identified as valid for denying mental health diversion. Further, none of these reasons is consistent with the underlying purpose of the mental health diversion statute, namely to provide treatment to break the cycle of criminal recidivism for those with diagnosed disorders. Given that the court’s rationale failed to justify its decision to deny defendant mental health diversion, we must vacate the trial court’s orders.

Authority:

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 897 [expanding the reasons to deny diversion is inconsistent with the underlying purpose of the mental health diversion statute]E

 

Amelioration, Discretion, Fines and fees, Sentencing, Standard of review

Case: 000292

Posted on by Gary McCurdy

Error and/or relief

In this appeal following resentencing under section 1172.75, the abstract of judgment must be amended to accurately reflect his actual custody credits, and several fines and fees must be reduced or vacated.

First Holding:

Effective January 1, 2022, section 1172.75(a) invalidated sentence enhancements imposed prior to January 1, 2020, pursuant to subdivision (b) of section 667.5. With exceptions not relevant here, the statute requires that sentences that include these invalid enhancements be recalled and the defendant resentenced.

Authority:

PEN 1172.75

Second Holding:

We review the trial court’s sentencing decision at a section 1172.75 resentencing for an abuse of discretion. Section 1172.75(d), vests the superior court with broad discretion based on an inherently factual inquiry. Under an abuse of discretion standard, we ask whether the trial court’s findings of fact are supported by substantial evidence, whether its rulings of law are correct, and whether its application of the law to the facts was neither arbitrary nor capricious.

Authority:

People v. Rogers (2025) 108 Cal.App.5th 340, 364

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

Third Holding:

An appellate court may not substitute its judgment about appropriate sentencing for that of the trial court, but instead must give due regard to the discretion vested in that court. The appellate court can find a reversible abuse of discretion only if it concludes that no reasonable judge would have agreed with the trial court’s decision. Unless that standard is met, the appellate court must affirm the decision, even if it might have ruled differentlyin the first instance.

Authority:

People v. Dain (2025) 18 Cal.5th 246, 258

Fourth Holding:

The abstract of judgment reflects credit for time served but reflects 326 fewer days than the defendant is entitled to. It must be corrected to reflect the correct number of days.

Authority:

PEN 2900.1

PEN 2900.5

People v. Buckhalter (2001) 26 Cal.4th 20, 29 [defendant entitled to all actual custody days since arrest, including date of resentencing]

Fifth Holding:

The trial court imposed a $30 criminal conviction fee on each count pursuant to Government Code section 70373. It also imposed a court operation fee of $40 per count pursuant to section 1465.8, subdivision (a)(1). However, Government Code section 70373 only applies to convictions after the statute’s January 1, 2009 effective date. Similarly, the court operations fee is only applicable to convictions after the statute’s 2003 operative date. Because the defendant suffered the convictions in 1995, the criminal conviction and court operations fees must be stricken.

Authority:

PEN 1465.8

People v. Davis (2010) 185 Cal.App.4th 998, 1000

People v. Alford (2007) 42 Cal.4th 749, 753, 754

Sixth Holding:

The restitution fine must be vacated, as it was imposed more than 10 years ago. Upon the expiration of 10 years after the date of imposition of a restitution fine pursuant to section 1202.4, the balance, including any collection fees, shall be unenforceable and uncollectible and any portion of a judgment imposing those fines shall be vacated.

Authority:

PEN 1465.9

In re Mattison (2025) 115 Cal.App.5th 1062, 1066

SeventhHolding:

The parole revocation fine must be reduced from $300 to $200. At the resentencing hearing, the court imposed a $300 restitution fine and imposed and stayed a $300 parole revocation fine. However, because the trial court originally imposed a $200 restitution fine, and the court may not impose a more severe punishment on resentencing, we agree with the parties that the stayed parole revocation fine must be reduced to $200, matching the originally imposed restitution fine.

Authority:

PEN 1172.75

Amelioration, Discretion, Sentencing

Case: 000284

Posted on by Gary McCurdy

Error and/or relief

On resentencing under section 1172.75, the court only struck the now-invalid enhancement, and ortherwise left the original sentence intact. Because the court based its decision not to dismiss enhancements on the mistaken belief defendant was eligible for elderly parole, we conclude the trial court abused its discretion such that defendant’s case must be remanded for a full resentencing.

First Holding:

Section 1385(c)(1) provides that notwithstanding any other law, the court shall dismiss an enhancement if it is in the furtherance of justice to do so, except if dismissal of that enhancement is prohibited by any initiative statute. Section 1385(c)(2) provides in pertinent part, that in exercising its discretion under this subdivision, the court shall consider and afford great weight to evidence offered by the defendant to prove that any of the 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

People v. Walker (2024) 16 Cal.5th 1024, 1032

Second Holding:

We review a trial court’s sentencing decisions under section 1385 for an abuse of discretion. When a sentencing court is unaware of its discretionary powers, it cannot 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.

Authority:

PEN 1385

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

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

Third Holding:

The trial court mistakenly believed defendant was eligible for elderly parole. (See sec. 3055(g).) Defendant’s sentenced under the Three Strikes law are not eligible for elderly parole. This mistaken belief tainted the trial court’s interests of justice analysis, as it relied heavily on the possibility defendant could obtain parole at a later, but certain, date regardless of its decision to dismiss enhancements. Because the trial court was mistaken about parole, we are uncertain the court would impose an identical sentence given the correct understanding that defendant’s future parole eligibility rested with the trial court alone. Accordingly, defendant is entitled to a full resentencing under the proper standard.

Authority:

People v. Salazar (2023) 15 Cal.5th 416, 419 [there must be clear indication the trial court would have reached the same conclusion with fully informed discretion]

People v. Buycks (2018) 5 Cal.5th 857, 893

Discretion, Racial Justice Act, Standard of review, Statutory interpretation

Case: 000271

Posted on by Gary McCurdy

Error and/or relief

The petition for writ of habeas corpus, construed as a petition for mandate, is granted. The defendant filed a petition under the Racial Justice Act (RJA) to challenge his conviction of 25 years earlier. He petition contained statistical data showing that the prosecution charged far more Black defendants for specified offenses than White defendants in that same three-year period. He sought counsel in his petition. The trial court denied it in its entirety.

The trial court erred in ruling that the defendant had to make a prima facie showing of entitlement to relief to secure appointment of counsel. Rather, to obtain counsel, the Racial Justice Act requires habeas petitioners to plead a plausible allegation of a violation of the Act. Second, the trial court’s denial of the defendant’s request for counsel was erroneous because regardless of whether he satisfied the minimal pleading standard governing that request, the court was unaware of its discretion to grant him leave to amend the petition to plead a plausible allegation of a Racial Justice Act violation. Lastly, the trial court erred in invoking the prohibition on successive habeas petitions because the defendant was not required to address procedural bars to relief at this initial stage of the proceedings.

First Holding:

When the issue on review is purely legal, such as the proper interpretation and application of a statute or constitutional provision, our review is de novo. Our fundamental task in interpreting a statute is to ascertain the Legislature’s intent so as to effectuate its purpose. We begin with the text of the statute and give the words their usual meaning while construing them in light of the statutory framework as a whole. If the statutory language is unambiguous, then its plain meaning controls. If the language permits more than one reasonable interpretation, courts may consider other aids, such as the statute’s purpose, legislative history, and public policy. Discretionary decisions by the trial court are generally subject to appellate review under the abuse of discretion standard to determine if they were within the bounds of some applicable legal criteria.

Authority:

In re Lugo (2008) 164 Cal.App.4th 1522, 1535

People v. Carter (2023) 97 Cal.App.5th 960, 967

People v. Hodge (2024) 107 Cal.App.5th 985, 998

Second Holding:

In 2020, the Legislature enacted the Racial Justice Act. The purpose of the Act is to purge racial discrimination from our criminal justice system, and to ensure that race plays no role at all in seeking or obtaining convictions or in sentencing’. In passing the Act, the Legislature recognized that racial bias persists in our criminal justice system because courts generally only address racial bias in its most extreme and blatant forms. The Act acknowledges that all persons possess implicit biases that impact the criminal justice system, and these biases tend to disfavor people of color. The RJA added section 745, which sets forth legal standards governing a claim for relief under the Act. The Act 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:

PEN 745

PEN 1473

McIntosh v. Superior Court (2025) 110 Cal.App.5th 33, 39, 43

People v. Lawson (2025) 108 Cal.App.5th 990, 993

Third Holding:

In the legislation amending section 1473(e) effective January 1, 2026, the Legislature emphasized the extremely low showing a petitioner must make to obtain counsel:  “The Act’s threshold to secure counsel is extremely low, and yet courts have denied counsel to litigants raising Racial Justice Act claims far more than they have appointed counsel The Legislature reaffirms that the threshold showing for appointment of counsel does not require a prima facie showing, as correctly held by McIntosh v. Superior Court (2025) 110 Cal.App.5th 33, and should be construed as a minimal pleading requirement.”

Authority:

McIntosh v. Superior Court (2025) 110 Cal.App.5th 33

Fourth Holding:

If the Legislature amends or reenacts the statute without changing the interpretation placed on that statute by the courts, the Legislature is presumed to have been aware of, and acquiesced in, the courts’ construction of that statute.

Authority:

People v. Brown (2016) 247 Cal.App.4th 1430, 1436

Fifth Holding:

The statute now requires the appointment of counsel for an indigent habeas petitioner if the petition pleads a plausible allegation of a violation of RJA, and obligates the court to determine if the petitioner has made a prima facie showing, instead of a prima facie showing of entitlement to relief.

Authority:

McIntosh v. Superior Court (2025) 110 Cal.App.5th 33, 39, 44

Sixth Holding:

The trial court’s denial of the defendant’s request for appointment of counsel was erroneous because the court was unaware of its discretion to permit him to amend his petition to satisfy the minimal pleading burden governing his request for counsel. 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. Simply stated, an abuse of discretion arises if the trial court based its decision on impermissible factors or on an incorrect legal standard.

Authority:

People v. K.D. (2025) 110 Cal.App.5th 1, 19