Category Archives: Discretion

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

Case: 000220

Posted on by Gary McCurdy

Error and/or relief

The defendant must be resentenced in light of enhancement-related errors and that the minute order from the bench trial on the defendant’s prior convictions requires correction. Therefore, we remand for resentencing and direct the minute order to be corrected.

First Holding:

Several of the errors raised involve the trial court’s exercise of discretion and were forfeited by the defendant’s failure to object below. Nonetheless, we have doubts about whether the trial court in fact exercised its discretion in failing to impose certain enhancements and making other sentencing choices, especially given discrepancies between the court’s tentative sentences and its final sentences. There also appears to be at least one error resulting in an unauthorized sentence that the parties do not raise. Under these circumstances, we find it appropriate to remand for both defendants to be fully resentenced so that the court can ensure the sentences reflect its intent in accordance with the law.

Authority:

People v. McCullough (2013) 56 Cal.4th 589, 594

In re G.C. (2020) 8 Cal.5th 1119, 1130

Second Holding:

Weapon enhancements must be either imposed consecutively or stricken. Such an enhancement cannot be imposed concurrently.

Authority:

PEN 1385

PEN 12022

Third Holding:

Unless stricken, prior-serious-felony and prior-prison-term enhancements are added once to each count on which an indeterminate term is imposed and once for the combined counts on which an aggregate determinate term has been imposed.

Authority:

People v. Tua (2018) 18 Cal.App.5th 1136, 1141

People v. Minifie (2018) 22 Cal.App.5th 1256, 1260

Fourth Holding:

A sentencing court may not impose terms for both a prior-serious-felony enhancement and a prior-prison-term enhancement that are based on the same underlying conviction.

Authority:

People v. Scully (2021) 11 Cal.5th 542, 612

Fifth Holding:

If a prior-conviction enhancement or punishment for it is stricken in the interest of justice, the enhancement should not also be imposed and stayed under section 654.

Authority:

People v. Tang (2025) 109 Cal.App.5th 1003, 1008–1009

Sixth Holding:

The trial court should ensure that it sufficiently explains its discretionary sentencing choices on the record.

Authority:

Rules of Court, rule 4.406

Seventh Holding:

There were several errors in the minute order that must be corrected.

[Gary note: The court did not cite any authority for its directive that the abstract be corrected, but the law is very clear that it has that authority. I have cited some cases that the court could have relied on.]

Authority:

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

People v. Delgado (2008) 43 Cal.4th 1059, 1070

People v. Leon (2020) 8 Cal.5th 831, 855

In re Black (1967) 66 Cal.2d 881, 890

People v. Zackery (2007) 147 Cal.App.4th 380, 385

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

Amelioration, Discretion, Sentencing, Standard of review

Case: 000210

Posted on by Gary McCurdy

Error and/or relief

We vacate defendant’s sentence and remand for full resentencing. The trial court abused its discretion when declining to fully strike the firearm enhancement or strike it and impose a lesser firearm enhancement. The trial court errantly focused only on the defendant’s past and present danger to public safety, and not whether striking the enhancement would endanger public safety in the future. The trial court erred in deciding whether striking the enhancement would endanger public safety because, as the record of the sentencing hearing indicates, it focused solely on defendant’s past conduct and the circumstances of the murder. In the context of section 1385, the key question is forward looking—whether striking the enhancement would likely endanger public safety. Thus, even if the trial court struck the enhancement, the defendant would still be serving an indeterminate 15-to-life term with parole eligibility subject to the Parole Board and Governor’s review. The trial court must consider this future-looking issue for purposes of public safety.

First Holding:

A trial court’s decision not to dismiss an enhancement pursuant to section 1385 is reviewed for abuse of discretion. An abuse of discretion arises if the trial court based its decision on impermissible factors or on an incorrect legal standard. A court acting while unaware of the scope of its discretion is understood to have abused it.

Authority:

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

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

People v. Tirado (2022) 12 Cal.5th 688, 694 [reminding that a defendant is entitled to sentencing decisions made by a court exercising informed discretion]

Second Holding:

Effective January 1, 2022,Penal Code section 1385 was amended to specify factors that the trial court must consider when deciding whether to strike enhancements from a defendant’s sentence in the interest of justice. It reads, in part, “Notwithstanding any other law, the court shall dismiss an enhancement if it is in the furtherance of justice to do so …. 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.” Subparagraphs (A) to (I) list nine distinct mitigating circumstances, including, as is relevant here, subparagraph (C) where the application of an enhancement could result in a sentence of over 20 years. Subparagraph (C) states in this instance, the enhancement shall be dismissed.

Authority:

PEN 1385

People v. Sek (2022) 74 Cal.App.5th 657, 674

Third Holding:

Although the current dangerousness of the defendant is an appropriate factor to consider, as it will have some bearing on whether dismissing the enhancement would endanger the public, a crucial part of the inquiry is how the dismissal of the enhancement will impact the length of the defendant’s sentence. For a defendant facing a lengthy indeterminate sentence, the inquiry should also take into account that the defendant’s release from prison is contingent on review by the Board of Parole Hearings (and for murder convictions, by the Governor), who will have the opportunity to assess the defendant’s dangerousness at that time. This future review will act as a safety valve against a release that would endanger the public and is relevant to a trial court’s analysis of whether the dismissal of an enhancement imposed on a defendant serving an indeterminate prison term will endanger public safety.

Authority:

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

 

Discretion, Standard of review, Sufficiency of and substantial evidence

Case 000202

Posted on by Gary McCurdy

Error and/or relief

The trial court’s finding that the People provided clear and convincing evidence to rebut the statutory presumption that defendant’s mental disorder was a significant factor in his commission of the offenses was not supported by substantial evidence. We remand to the trial court for a new diversion eligibility hearing under section 1001.36. If the court determines that defendant is eligible for diversion, it may grant his application. If the court determines defendant is ineligible, defendant’s convictions and sentence shall be reinstated.

First Holding:

The Legislature enacted sections 1001.35 and 1001.36 to authorize trial courts to grant pretrial mental health diversion to defendants with qualifying mental disorders. To be eligible for mental health diversion, a defendant must have been diagnosed within the past five years with a mental disorder identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders and the defendant’s mental disorder must be a significant factor in the commission of the offense. There is a presumption that a defendant’s mental disorder diagnosis, if the diagnosis occurred within the past five years, was a significant factor in the commission of the offense. Once a presumption is established, it is the People’s burden to provide clear and convincing evidence that defendant’s mental disorder was not a motivating, causal, or contributing factor to overcome it.

Authority:

PEN 1001.35

PEN 1001.36

Gomez v. Superior Court (2025) 113 Cal.App.5th 671, 678

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

Second Holding:

We review a trial court’s ruling on an application for mental health diversion for an abuse of discretion and its factual findings for substantial evidence. A court abuses its discretion when it applies the wrong legal standard or bases its decision on findings that are not supported by substantial evidence. By definition, ‘substantial evidence’ requires evidence and not mere speculation.

Authority:

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

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

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

Third Holding:

In reviewing a trial court’s finding that a fact has been proven by clear and convincing evidence, the question before us is whether the record contains evidence from which a reasonable fact finder could have found it highly probable that the disputed fact was true. We view the record in the light most favorable to the prevailing party and give due deference to how the trier of fact may have evaluated the credibility of witnesses, resolved conflicts in the evidence, and drawn reasonable inferences from the evidence. Those inferences must be drawn from evidence rather than speculation

Authority:

Lacour v. Superior Court (2025) 110 Cal.App.5th 391, 401-402

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

Fourth Holding:

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

Authority:

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

Discretion, Sentencing, Sixth Amendment

Case: 000189

Posted on by Gary McCurdy

Error and/or relief

The trial court erred by reimposing the upper term sentences based on aggravating factors that were not proven beyond a reasonable doubt to a jury as required under section 1170(b)(2). This error violated his Sixth Amendment right to a jury trial and was not harmless beyond a reasonable doubt. The trial court failed to exercise its discretion under AB 518 (2021-2022 Reg. Sess.) (regarding the choice of sentences to impose when section 654 permits sentencing on only one of the counts it applies to) at the resentencing hearing. The abstract of judgment must be corrected to reflect the correct sentencing date and number of custody credits.

First Holding:

Under the Fifth and Sixth Amendments to the United States Constitution, any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence. Section 1170(b)(2) similarly provides that the trial court may impose a sentence exceeding the middle term only when circumstances in aggravation of the crime justify imposition of an upper term sentence, and the facts underlying those circumstances have been stipulated to by the defendant or have been found true beyond a reasonable doubt’ at a jury or court trial. This jury trial right is not merely a state law entitlement, but is constitutionally required for all aggravating facts, other than a prior conviction, relied upon to justify an upper term sentence.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1078

Second Holding:

When a defendant is deprived of a jury trial on aggravating facts used to justify imposition of an upper term sentence, the reviewing court must apply the Chapman standard of review. Under that standard, a sentence imposed under section 1170(b) must be reversed and remanded unless the reviewing court concludes beyond a reasonable doubt that a jury, applying that same standard, would have found true all of the aggravating facts upon which the court relied to conclude the upper term was justified, or that those facts were otherwise proved true in compliance with the current statute. Lack of a jury trial is not harmless under Chapman if the record contains evidence that could rationally lead to a contrary finding with respect to the aggravating fact at issue.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1087

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

Third Holding:

Section 654 prohibits a court from punishing a defendant more than once for the same act or course of conduct. Prior to 2022, the statute required that an act or omission punishable in different ways by different statutes be punished under the provision that provided the longest potential term of imprisonment. (Former sec. 654(a).) AB 518 amended section 654 effective January 1, 2022, to grant a court discretion to punish such an act under either of such provisions. The trial court erroneously failed to exercise its discretion under Assembly Bill 518 at the resentencing hearing. Since we are again remanding this matter for resentencing under Senate Bill 567, the trial court should conduct a full resentencing as to all counts based on the law and circumstances that apply when resentencing occurs, including the amendments to section 654 under AB 518.

Authority:

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

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

Fourth Holding:

The abstract of judgment will need to be corrected to reflect the correct sentencing date and number of custody credits.

[Gary note: The court did not cite authority for this obviously required order. There are many cases it could have cited. I have listed some of them below.]

Authority:

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

People v. Delgado (2008) 43 Cal.4th 1059, 1070

People v. Leon (2020) 8 Cal.5th 831, 855

In re Black (1967) 66 Cal.2d 881, 890

People v. Zackery (2007) 147 Cal.App.4th 380, 385

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

Discretion, Sentencing, Standard of review, Sufficiency of and substantial evidence

Case: 000188

Posted on by Gary McCurdy

Error and/or relief

The court denied the defendant’s motion for mental health diversion under section 1001.36, and placed him on probation. The evidence is insufficient to support the trial court’s finding that his undisputed mental health disorders were not a motivating, causal, or contributing factor in his involvement in the crime. We will reverse the probation order due to insufficient evidence supporting the trial court’s finding of ineligibility for mental health diversion under Penal Code section 1001.36(b)(2). We will remand the matter for the trial court to exercise its discretion under Penal Code section 1001.36(c) regarding defendant’s suitability for mental health diversion.

First Holding:

Since 2018, Penal Code section 1001.36 has afforded trial courts discretion to grant criminal defendants suffering from certain recognized mental disorders pretrial diversion to receive mental health treatment. Diversion allows for the suspension of criminal proceedings and potential dismissal of charges upon successful completion of mental health treatment. The express purpose of the legislation was to increase diversion of eligible individuals, and later amendments have only confirmed the Legislature’s desire to expand mental health treatment through diversion. As currently enacted, a defendant accused of a qualifying offense is eligible for mental health diversion if the defendant has been diagnosed with a qualifying mental health disorder which was a significant factor in the commission of the charged offense. A qualifying diagnosis creates a rebuttable presumption that the disorder was a significant factor in the commission of the offense. The presumption can be overcome if there is clear and convincing evidence that the disorder was not a motivating factor, causal factor, or contributing factor to the defendant’s involvement in the alleged offense.

Authority:

PEN 1001.36

People v. Brown (2024) 101 Cal.App.5th 113, 119

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 890

Second Holding:

We review for substantial evidence a decision that a qualifying mental health disorder (which the trial court found to exist here) was not a motivating factor, causal factor, or contributing factor in the charged conduct—a finding that must be supported by clear and convincing evidence. Given that standard, on appeal we must determine whether the record as a whole contains substantial evidence from which a reasonable fact finder could have found it highly probable that the fact was true. We also must view the record in the light most favorable to the prevailing party below and give due deference to how the trier of fact may have evaluated the credibility of witnesses, resolved conflicts in the evidence, and drawn reasonable inferences from the evidence.

Even considering the record in the light most favorable to the challenged ruling, we conclude it does not contain substantial evidence from which a reasonable trier of fact could have found it highly probable that defendant’s mental disorders were not a motivating factor, causal factor, or contributing factor in his involvement in the crime. A qualifying diagnosis creates a presumption that the defendant’s mental condition contributed to his criminal behavior. And the prosecution can only rebut this presumption by producing clear and convincing evidence that there was no causal connection. he statutory presumption is not overcome simply by the absence of evidence that the mental disorder was a motivating factor, or the absence of evidence that the defendant was actively experiencing symptoms while committing the crime. The statutory presumption is not overcome simply by the absence of evidence that the mental disorder was a motivating factor, or the absence of evidence that the defendant was actively experiencing symptoms while committing the crime.

Authority:

Lacour v. Superior Court (2025) 110 Cal.App.5th 391, 401, 404

Conservatorship of O.B. (2020) 9 Cal.5th 989, 995–996

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