Category Archives: Discretion

Abstracts and Minutes, Discretion, Sentencing, Standard of review

Case 001074

Posted on by Gary McCurdy

Error and/or relief

The trial court misunderstood the scope of its discretion when it considered the defendant’s request for resentencing under section 1172.1. It believed that it was bound by the decision affirming his conviction at his original appeal and by the later decision denying his motion to have his conviction vacated under section 1172.6.

The evidence on which the defendant relied in requesting resentencing under section 1172.1, however, was not available at the time of his first appeal, and the issue under section 1172.6 dealt solely with liability under the felony murder theory or the natural and probable consequences theory of murder. Neither dealt with the constitutional issues regarding the failure of the prosecution to provide potentially exculpatory evidence or information in the first place.

The comments of the court in the course of considering the request under section 1172.1 suggest that the court did believe that there were constitutional issues with the conviction, and might have been willing to grant additional relief had it understood that section 1172.1 does, indeed, give it the authority to revisit the conviction. Therefore, we remand for the court to reconsider whether the defendant’s sentence should be recalled and reexamined under section 1172.1.

Further, the restitution fine must be stricken as more than 10 years old, and the court must recalculate the credit for time served.

First Holding:

Section 1172.1 is a statutory exception to the general rule that once a judgment is rendered and execution of the sentence has begun, the trial court does not have jurisdiction to vacate or modify the sentence. As amended effective January 1, 2024, section 1172.1(a) authorizes the court to recall a sentence and resentence the defendant on its own motion at any time if the applicable sentencing laws at the time of original sentencing are subsequently changed by new statutory authority or case law.

Section 1172.1 does not authorize the defendant to initiate the recall and resentencing process. The statute states: ‘A defendant is not entitled to file a petition seeking relief from the court under this section. If a defendant requests consideration for relief under this section, the court is not required to respond.”

Authority:

People v. Craig (2026) 117 Cal.App.5th 1165, 1170-1171

Second Holding:

Section 1172.1(a)(2) instructs a trial court, when recalling and resentencing a defendant, to apply the sentencing rules of the Judicial Council and apply any changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing.

Trial courts may modify a defendant’s sentence to reduce the term of imprisonment. They may also vacate a defendant’s conviction and impose judgment on any necessarily included lesser offense or lesser related offense, whether or not that offense was charged in the original pleading, with the concurrence of the defendant, and then resentence the defendant to a reduced term of imprisonment.

The statute lists various postconviction factors trial courts must consider when recalling and resentencing a defendant. Those factors include the disciplinary record and record of rehabilitation of the defendant while incarcerated and evidence that reflects that circumstances have changed since the original sentencing so that continued incarceration is no longer in the interest of justice.

Evidence that the defendant’s incarceration is no longer in the interest of justice includes, but is not limited to, evidence that the defendant’s constitutional rights were violated in the proceedings related to the conviction or sentence at issue, and any other evidence that undermines the integrity of the underlying conviction or sentence.

A trial court shall state on the record the reasons for its decision to grant or deny recall and resentencing.

Authority:

PEN 1172.1

Third Holding:

We review the superior court’s decision whether to recall a defendant’s sentence for abuse of discretion. To establish an abuse of discretion, a defendant must establish the court acted while unaware of the scope of its discretion, considered impermissible factors, or made a choice so irrational or arbitrary that no reasonable person could agree with it.

Authority:

People v. Craig (2026) 117 Cal.App.5th 1165, 1175

People v. Olea (2025) 115 Cal.App.5th 889, 902–903

Fourth 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. Section 1237(b) allows a defendant to appeal from any order made after judgment, affecting the substantial rights of the party.

Authority:

People v. Craig (2026) 117 Cal.App.5th 1165, 1171

Fifth Holding:

Section 1172.1 does not give a defendant the right to make a motion or to appeal if the trial ignores the request or summarily denies it without taking action.

Craig held that a trial court’s order denying a request for resentencing under section 1172.1 was appealable after the trial court reviewed moving and opposition papers; looked at documents and case history, including letters of support, evidence of rehabilitation, and prison disciplinary records; heard argument from counsel at a hearing at which the defendant appeared remotely; and addressed the merits of the petition instead of denying it as unauthorized.

Olea held that a denial was appealable after the trial court followed similar steps, including appointing counsel for the defendant, ordering the release of subpoenaed records concerning the defendant’s behavior and activities in prison, and setting a contested hearing at which the defendant appeared remotely, the court heard argument, indicated it reviewed the record, and stated it believed the original sentence was just.

The situation before us is similar to that encountered in Craig and Olea, not to that in Hodge, and we hold that the decision to deny resentencing under section 1172.1 is appealable under these circumstances.

Authority:

People v. Hodge (2024) 107 Cal.App.5th 985, 991, 996, 999 [a trial court’s order declining to exercise its discretion to recall a defendant’s sentence was not appealable]

People v. Craig (2026) 117 Cal.App.5th 1165, 1171-1175

People v. Olea (2025) 115 Cal.App.5th 889, 901-902

Sixth Holding:

The trial court’s reasons for rejecting evidence that seriously undermined the conviction were impermissible. The court stated it was not its place to revisit the jury’s determination, even though section 1172.1 empowers the court to do just that. Under section 1172.1(a)(3)(B), when resentencing, a trial court may cacate the defendant’s conviction and impose judgment on any necessarily included lesser offense or lesser related offense, with the consent of the defendant. The court’s comments during the hearing very clearly indicated that it acknowledged the problems with the convictions as the defendant and his counsel described. The court did reduce the sentence substantially to the minimum for second degree murder.

When a trial court has given both proper and improper reasons for a sentence choice, a reviewing court will set aside the sentence only if it is reasonably probable that the trial court would have chosen a lesser sentence had it known that some of its reasons were improper.

There is such a reasonable probability here, since the trial court seemed to feel constrained by the verdict and prior appeals, and never appeared to grapple with the gravity of the constitutional violations the defendant alleged, simply referring to them as a number of things that happened. We therefore agree with the defendant that a remand is warranted so that the trial court can exercise its discretion again. The trial court should explain its rationale regarding the defendant’s claims of violations of his constitutional rights and whether or not those claims justify a further reduction in the defendant’s sentence.

Authority:

PEN 1172.1(a)(3)(B)

People v. Mendoza (2022) 74 Cal.App.5th 843, 856

Seventh Holding:

The restitution fine was imposed more than 10 years ago and must be vacated under section 1465.9(d), which states that 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 11465.9(d)

People v. Salstrom (2025) 117 Cal.App.5th 596, 600–601, review granted on another issue and further action deferred Mar. 11, 2026, S289903

Eighth Holding:

The court did not recalculate the defendant’s time served, and the abstract still reflects the same number of days as awarded at his original sentence more than 15 years ago. The court should have recalculated the credit for time served.

Authority:

People v. Buckhalter (2001) 26 Cal.4th 20, 29 [when resentencing a defendant, trial court must update the calculation of actual time served, whether before or after sentencing and in jail or prison]

People v. Dean (2024) 99 Cal.App.5th 391, 397 [Department of Corrections and Rehabilitation, not trial court, is responsible for calculating post-sentence credits other than actual time served]

Discretion, Sentencing, Standard of review, Statutory interpretation

Case 001070

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in believing that Health and Safety Code section 11358 is not a “wobbler”–a crime that may be punished as either a misdemeanor or a felony. Remanded for the court to reconsider the defendant’s motion to reduce the offense to a misdemeanor.

First Holding:

A “wobbler” is an offense that may be charged and punished as either a felony or a misdemeanor. If a defendant has been convicted of a wobbler that was not charged as a misdemeanor, the procedures set forth in section 17(b) govern the court’s exercise of discretion to classify the crime as a misdemeanor.

Authority:

PEN 17

Davis v. Municipal Court (1988) 46 Cal.3d 64, 70

People v. Park (2013) 56 Cal.4th 782, 790

Second Holding:

When a crime is punishable, in the discretion of the court, either by imprisonment in state prison or by fine or imprisonment in the county jail, it is a misdemeanor for all purposes under the following circumstances: … (3) When the court grants probation to a defendant without imposition of sentence and at the time of granting probation, or on application of the defendant or probation officer thereafter, the court declares the offense to be a misdemeanor.

Authority:

PEN 17(b)(3)

Third Holding:

We review a trial court’s decision not to declare a wobbler to be a misdemeanor for abuse of discretion. When a trial court’s decision rests on an error of law, that decision is an abuse of discretion. We independently review questions of statutory interpretation.

Authority:

People v. Lee (2017) 16 Cal.App.5th 861, 866

People v. Lopez (2021) 66 Cal.App.5th 561, 574

People v. Mendoza (2023) 88 Cal.App.5th 287, 294

Fourth Holding:

Health and Safety Code section 11358(c) provides that a person 18 years of age or over who plants, cultivates, harvests, dries, or processes more than six living cannabis plants shall be punished as a misdemeanor. Section 11358(d) further provides that, notwithstanding subdivision (c), planting, cultivation, harvesting, drying, or processing of more than six cannabis plants by an adult may be punished as a felony if certain aggravating circumstances are present.

(Gary note: Boiled down, the specified aggravating circumstances are of three ilks (the numeration being mine): (a) one or more “super strike” prior convictions (see Penal Code section 667(e)(2)(c)(iv)) or a prior conviction for an offense requiring sex offender registration under Penal Code section 290(c); (b) this is at least the third offense under 11358(c); and (c), the current offense resulted in violation of any of several specified environmental protection provisions.)

Authority:

HSC 11358(c)

Fifth Holding:

In interpreting a voter initiative, we apply the same principles that govern our construction of a statute. We turn first to the statutory language, giving the words their ordinary meaning. If the statutory language is not ambiguous, then the plain meaning of the language governs. If, however, the statutory language lacks clarity, we may resort to extrinsic sources, including the analyses and arguments contained in the official ballot pamphlet, and the ostensible objects to be achieved.

Under well-settled principles of statutory construction, we ordinarily construe the word “may” as permissive and the word “shall” as mandatory, particularly when a single statute uses both terms. In other words, when the Legislature has, as here, used both “shall” and “may” in close proximity in a particular context, we may fairly infer the Legislature intended mandatory and discretionary meanings, respectively.

Authority:

People v. Lopez (2005) 34 Cal.4th 1002, 1006.

Tarrant Bell Property, LLC v. Superior Court (2011) 51 Cal.4th 538, 542

Sixth Holding:

The plain language of section 11358 is unambiguous. Misdemeanor punishment of the offense defined by subdivision (c) is mandatory, because the statute there says “shall.” But felony punishment of the same conduct when the aggravating circumstances listed in subdivision (d) are present is discretionary, because the statute there says “may.”

Because felony punishment under subdivision (d) is discretionary, the offense defined by that subdivision is a wobbler. The court therefore erred by concluding that subdivision (d) is a straight felony, and the court’s denial of the defendant’s motion under Penal Code section 17(b) on that basis was an abuse of discretion.

Authority:

PEN 17(b)

(Gary note: For your convenience, here are subdivisions (b) (c), (e), and (f) of section 17 as of the writing of this summary. I omitted subdivision (d), which  pertains to infractions.)

PEN 17
(b) When a crime is punishable, in the discretion of the court, either by imprisonment in the state prison or imprisonment in a county jail under the provisions of subdivision (h) of Section 1170, or by fine or imprisonment in the county jail, it is a misdemeanor for all purposes under the following circumstances:

(1) After a judgment imposing a punishment other than imprisonment in the state prison or imprisonment in a county jail under the provisions of subdivision (h) of Section 1170.

(2) When the court, upon committing the defendant to a secure youth treatment facility, designates the offense to be a misdemeanor.

(3) When the court grants probation to a defendant and at the time of granting probation, or on application of the defendant or probation officer thereafter, the court declares the offense to be a misdemeanor.

(4) When the prosecuting attorney files in a court having jurisdiction over misdemeanor offenses a complaint specifying that the offense is a misdemeanor, unless the defendant at the time of arraignment or plea objects to the offense being made a misdemeanor, in which event the complaint shall be amended to charge the felony and the case shall proceed on the felony complaint.

(5) (A) When the court determines, prior to trial, either on its own motion or the motion of a party, that the offense is a misdemeanor, in which event the case shall proceed as if the defendant had been arraigned on a misdemeanor complaint.

(B) Following a denial of a motion pursuant to subparagraph (A), a subsequent motion pursuant to subparagraph (A) may only be made upon a showing of changed circumstances, which includes, but is not limited to, newly available facts relevant to the charge or defendant’s personal circumstances, or change in the applicable law.

(c) When a defendant is committed to a secure youth treatment facility for a crime punishable, in the discretion of the court, either by imprisonment in the state prison or imprisonment in a county jail under the provisions of subdivision (h) of Section 1170, or by fine or imprisonment in the county jail not exceeding one year, the offense shall, upon the discharge of the defendant from the secure youth treatment facility, thereafter be deemed a misdemeanor for all purposes.

…….

(e) This section does not authorize a judge to relieve a defendant of the duty to register as a sex offender pursuant to Section 290 if the defendant is charged with an offense for which registration as a sex offender is required pursuant to Section 290, and for which the trier of fact has found the defendant guilty.

(f) When the court exercises its discretion under this section, an unfulfilled order of restitution or a restitution fine shall not be grounds for denial of a request or application for reduction.

Discretion, Probation Parole PRCS, Sentencing, Standard of review

Case 001067

Posted on by Gary McCurdy

Error and/or relief:

There is not sufficient nexus with the current offense or with future criminality to justify the imposition of the gang conditions of probation. In addition, payment for counseling cannot be ordered as a condition of probation. We direct the trial court to strike the gang conditions and to modify the counseling provision to clarify that payment of costs is not a condition of probation.

First Holding:

When a trial court grants probation, section 1203.1(j) states that the court may impose and require any or all of the terms of imprisonment, fine, and conditions specified in that section, and other reasonable conditions, as it may determine are fitting and proper to the end that justice may be done, that amends may be made to society for the breach of the law, for any injury done to any person resulting from that breach, and generally and specifically for the reformation and rehabilitation of the probationer.

Accordingly, courts have broad discretion to impose conditions to foster rehabilitation and to protect public safety.

Authority:

PEN 1203.1(j)

People v. Carbajal (1995) 10 Cal.4th 1114, 1120

Second Holding:

There are limits to the conditions a court may impose. Under Lent, a condition of probation will be invalid if 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.

This test is conjunctive—all three prongs must be satisfied before a reviewing court will invalidate a probation term.

Authority:

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

People v. Olguin (2008) 45 Cal.4th 375, 379

Third Holding:

We review the trial court’s decision to impose a given probation condition for an abuse of discretion, considering the facts of the underlying offense and the defendant’s background. (Olguin, supra, 45 Cal.4th at p. 379; People v. Patillo (1992) 4 Cal.App.4th 1576, 1579.) We review constitutional challenges to specific conditions of probation—including assertions that a condition improperly delegates the trial court’s authority—de novo.

Authority:

People v. Olguin (2008) 45 Cal.4th 375, 379

People v. Patillo (1992) 4 Cal.App.4th 1576, 1579

People v. Smith (2022) 79 Cal.App.5th 897, 902

Fourth Holding:

The defendant complains that the court should not have reviewed his juvenile record, as juvenile proceedings are confidential.

In general, juvenile court records are confidential. Welfare and Institutions Code section 827 governs the release of juvenile court records. It enumerates a list of persons who may inspect a juvenile case file without a court order, which includes, among others, court personnel, the district attorney, a city attorney, or city prosecutor authorized to prosecute criminal or juvenile cases under state law, attorneys for the parties, judges, referees, other hearing officers, probation officers, and law enforcement officers who are actively participating in criminal or juvenile proceedings involving the minor, and any other person who may be designated by court order of the judge or the juvenile court upon filing a petition.

Authority:

WIC 827

City of Eureka v. Superior Court (2016) 1 Cal.App.5th 755, 761

Fifth Holding:

Welfare and Institutions Code section 828(a)(2) states that a court shall consider any information relating to the taking of a minor into custody, if the information is not contained in a record that has been sealed, for purposes of determining whether adjudications of commission of crimes as a juvenile warrant a finding that there are circumstances in aggravation pursuant to Section 1170 of the Penal Code or to deny probation.

The defendant’s juvenile record has not been sealed. Thus, court personnel, the prosecutor, and the probation department were permitted to inspect the records without court order. Moreover, the court was permitted to consider information related to the taking of Reeves into custody for the purpose of determining whether to grant or deny probation.

Authority:

WIC(a)(2)

Sixth Holding:

Probation conditions need not relate directly to the underlying conviction, and may, instead, be reasonably related to future criminality. But here we cannot conclude that the gang conditions are reasonably related to future criminality. As discussed, even if appropriately considered, the defendant’s juvenile record is 10 years old, and in the intervening 10 years, there is no indication that the defendant has engaged in any criminal activity related to gangs.

Authority:

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

Seventh Holding:

Courts may properly base probation conditions upon information in a probation report that raises concerns about future criminality unrelated to a prior offense. Yet Lent’s requirement that a probation condition must be reasonably related to future criminality contemplates a degree of proportionality between the burden imposed by a probation condition and the legitimate interests served by the condition. Thus, not every probation condition bearing a remote, attenuated, tangential, or diaphanous connection to future criminal conduct can be considered reasonable.

Courts are not authorized to impose “conditions to shield probationers from exposure to people and circumstances that are less than ideal but are nonetheless unrelated to defendant’s current or prior offenses or any factor suggesting a risk of future criminal conduct. Accordingly, we conclude that the gang conditions are not reasonable under Lent and must be stricken.

Authority:

In re Ricardo P. (2019) 7 Cal.5th 1113, 1122

People v. Brandão (2012) 210 Cal.App.4th 568, 574, 577

Eighth Holding:

The trial court may order a defendant to pay for reasonable costs of probation; however, such costs are collateral and their payment cannot be made a condition of probation.

Accordingly, we will direct the trial court to modify the condition with this clarification.

Authority:

Brown v. Superior Court (2002) 101 Cal.App.4th 313, 321

Ninth Holding:

The defendant’s remaining arguments about the propriety of the order directing that all costs are to be borne by the defendant are forfeited for lack of objection at the time they were ordered.

Authority:

People v. Trujillo (2015) 60 Cal.4th 850, 858–859 [defendant waived arguments regarding ability to pay probation costs by failing to raise them in the trial court]

Discretion, Elements of crime, Sentencing

Case 001065

Posted on by Gary McCurdy

Error and/or relief

The trial court erred by imposing consecutive sentences for both assault (count 7) and carjacking (count 6). Remanded for resentencing.

First Holding:

The court was required under section 654 to stay the sentence imposed on one of the counts because both were based on the same physical act of driving a vehicle in a threatening manner. Section 654 allows the trial court to stay the sentence for either count 6 or count 7, at its discretion.

Authority:

PEN 654

Second Holding:

The enhancement for personal use of a firearm imposed on the carjacking count must be stricken because no evidence was presented that a firearm was employed during the commission of that offense and that the enhancement for infliction of great bodily injury on the murder count is prohibited by section 12022.7(g).

The Attorney General concedes the above enhancements must be stricken, noting that the information did not allege these enhancements and the jury made no such findings.

Authority:

PEN 12022.7(g)

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

Case 001053

Posted on by Gary McCurdy

Error and/or relief

The court erred in denying the defendant’s request for mental health diversion because the court failed to explain its reasons for denying the motion and, in doing so, may have applied the law incorrectly.

First Holding:

Mental health diversion allows the trial court to suspend criminal proceedings and potentially dismiss the charges if the defendant successfully completes mental health treatment. To grant diversion, the trial court must find that the defendant is both eligible for diversion and suitable for a mental health program.

Defendants are eligible if they have been diagnosed with a recognized mental disorder that was a significant factor in the commission of the criminal offense with which they are charged. The trial court shall find that the defendant’s mental disorder was a significant factor in the commission of the offense unless there is clear and convincing evidence that it was not a motivating factor, causal factor, or contributing factor to the defendant’s involvement in the alleged offense.

Authority:

People v. Flareau (2026) 118 Cal.App.5th 681, 689

Second Holding:

A defendant is suitable for diversion if:

(1) in the opinion of a qualified mental health expert, the defendant’s mental disorder would respond to treatment;

(2) the defendant agrees to waive their speedy trial rights;

(3) the defendant agrees to comply with treatment requirements; and

(4) the defendant will not pose an unreasonable risk of danger to public safety as defined.

Authority:

People v. Flareau (2026) 118 Cal.App.5th 681, 689

Third Holding:

But even if the trial court finds that a defendant is eligible and suitable for diversion, the court retains discretion to deny diversion. This has been deemed residual discretion.

Authority:

People v. Flareau (2026) 118 Cal.App.5th 681, 689

Fourth Holding:

When a trial court considers public safety concerns in its suitability analysis, it is limited to assessing whether the defendant is likely to commit a “super strike” offense if released on mental health diversion. The trial court did not consider that likelihood.

(Gary note: section 1001.36 was amended by AB 46, signed into law June 29, 2026, effective January 1, 2027. Among other changes, the “unreasonable risk of danger to public safety” will no longer use the standard set forth as “super strikes” in section 1170.18.

(Until January 1, 2027, the relevant portion of section 1001.36(c)(4) reads, in part, “The defendant will not pose an unreasonable risk of danger to public safety, as defined in section 1170.18, if treated in the community.”

(But as of January 1, 2027, that aspect of the new section (1001.36(c)(1)(D)) reads, in part, “The defendant will not pose a substantial and undue risk to the physical safety of another person, if treated in the community.”

(If you have a client who seems ripe for mental health diversion, I suggest you hasten while the disqualifying factor remains at its high bar. Section 1170.18 defines specifically what a judge must consider the defendant is likely to do–commit a super strike as defined. Once AB 46 goes into effect, the standard gives far less precision on what constitutes undue risk to the physical safety of another person.)

Authority:

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 896

Fifth Holding:

The trial court’s comments about a lack of accountability and oversight if defendant were granted mental health diversion reflects a misunderstanding of the mental health diversion process. A person granted mental health diversion will be undergoing inpatient or outpatient treatment, and the statute requires the provider of the mental health treatment program in which the defendant is placed to provide regular reports to the court, the defense, and the prosecutor on the defendant’s progress in treatment

In addition, if the person is performing unsatisfactorily in the assigned program, or is charged with an additional offense or is engaging in criminal conduct during diversion, the court must hold a hearing to determine whether to, inter alia, modify treatment or reinstate criminal proceedings.

Authority:

People v. Calabar (2025) 117 Cal.App.5th 41, 58

Sixth Holding:

We must reverse unless the record clearly indicates that the trial court still would have denied defendant’s motion for mental health diversion even if the court had applied the law correctly.

Authority:

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

People v. Qualkinbush (2022) 79 Cal.App.5th 879, 891-892

Seventh Holding:

When, as here, we conditionally vacate a defendant’s plea agreement and remand for further mental health diversion proceedings, we necessarily must conditionally reverse the defendant’s sentence. Our reversal of the defendant’s sentence thus moots his other challenges to his sentence.

Authority:

People v. Qualkinbush (2022) 79 Cal.App.5th 879, 892

People v. Moine (2021) 62 Cal.App.5th 440, 452

People v. Frahs (2020) 9 Cal.5th 618, 640-641

People v. Rojas (2015) 237 Cal.App.4th 1298, 1301-1302 [appellant’s argument that trial court made sentencing errors held moot given remand for resentencing]