Category Archives: Discretion

Appellate Principles, Discretion

Case 000968

Posted on by Gary McCurdy

Error and/or relief

In denying the petition, the trial court stated the law compelled it to find the defendant poses an unreasonable risk of danger to public safety if treated in the community because of the seriousness of the charged offenses.

The trial court abused its discretion in failing to apply the correct legal standard. Accordingly, we conditionally reverse the judgment, reverse the order denying the defendant’s petition, and remand the case for the trial court to reconsider the defendant’s petition.

First Holding:

To qualify for mental health diversion, a defendant must meet eligibility and suitability criteria. If a defendant is both eligible and suitable, the court may, in its discretion grant diversion. Thus, a diversion order is expressly discretionary with the court, even when all of the criteria are met.

Authority:

PEN 1001.36(a)

Gomez v. Superior Court (2025) 113 Cal.App.5th 671, 685

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 891

People v. Doron (2023) 95 Cal.App.5th 1, 9

People v. Cabalar (2025) 117 Cal.App.5th 41, 53

Second Holding:

A defendant is eligible for diversion if he suffers from a qualifying mental disorder that was a significant factor in the commission of the charged offense.

A defendant is suitable for diversion if (1) a qualified mental health expert opines the defendant’s symptoms will respond to treatment, (2) the defendant consents to diversion and waives the right to a speedy trial, (3) the defendant agrees to comply with treatment, and (4) the defendant will not pose an unreasonable risk of danger to public safety if treated in the community.

As to the last suitability requirement, a defendant poses an unreasonable risk of danger to public safety only if there is an unreasonable risk he will commit a violent felony known as a super strike.

Authority:

PEN 1001.36

People v. Moine (2021) 62 Cal.App.5th 440, 449–450

Third Holding:

Nothing precludes a trial court from relying primarily, or even entirely, on the circumstances of the charged offense or offenses in denying a motion for diversion. However, no matter how serious the charged offenses, the court retains discretion to find the defendant does not pose an unreasonable danger.

Authority:

People v. Bunas (2022) 79 Cal.App.5th 840, 862

People v. Graham (2024) 102 Cal.App.5th 787, 799 [the court acted within its discretion in determining that the nature and manner of defendant’s charged crimes—and particularly, the two super strikes—rendered her likely to commit another super strike; section 1001.36 grants broad discretion to the court to consider any factors it deems appropriate when assessing dangerousness.]

Fourth Holding:

It appears here that the court applied the wrong standard in assessing the risk of danger to public safety. The court stated it was “here to consider the seriousness of the charges,” and “based on the seriousness of the charges,” the law “compels” it to find the defendant poses an unreasonable risk of danger to public safety if treated in the community.

These comments suggest the court erroneously believed, because of the seriousness of the charges, it lacked discretion to find in the defendant’s favor on the dangerousness issue.

Given that the court did not discuss the circumstances of the offenses or identify any other factors it considered in reaching its decision, we are not sufficiently confident that it understood it had discretion.

Authority:

People v. Moine (2021) 62 Cal.App.5th 440, 449 [a court abuses its discretion when it applies the wrong legal standard]

Fifth Holding:

A court unaware of the scope of its discretionary powers can no more exercise that informed discretion than one whose decision is or may have been based on misinformation regarding a material aspect of a defendant’s record.

Under these circumstances, the proper remedy 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.

Authority:

People v. Doron (2023) 95 Cal.App.5th 1, 10

People v. Moine (2021) 62 Cal.App.5th 440, 451-452 [remanding for reconsideration where court erroneously found defendant failed to meet dangerousness suitability requirement]

People v. Gutierrez (2014) 58 Cal.4th 1354, 1391 [remand for resentencing is required when a court is unaware of the scope of its discretionary powers, unless the record clearly indicates the court would have reached the same conclusion had it been aware of its discretion]

Sixth Holding:

Here, the record does not clearly indicate how the court would have ruled had it applied the correct standard on the dangerousness issue. Indeed, the court expressed some regret that the law compelled it to find the defendant posed an unreasonable risk of danger.

Moreover, the Attorney General does not argue the defendant otherwise was ineligible or unsuitable for diversion as a matter of law. Accordingly, the proper remedy is a conditional reversal and remand with directions to reconsider the petition under the correct standard.

Authority:

People v. Frahs (2020) 9 Cal.5th 618, 640 [approving Court of Appeal’s decision to conditionally reverse a defendant’s convictions and sentence with instructions to conduct a hearing to consider eligibility for mental health diversion]

Discretion, Sentencing

Case 000966

Posted on by Gary McCurdy

Error and/or relief

The great bodily injury enhancement in connection with the kidnapping of the victim and the corporal-injury-on-a-child count both concern the same conduct, such that one of the sentences must be stayed under section 654.

Holding:

The great bodily injury enhancement in connection with the kidnapping of the victim and the corporal-injury-on-a-child count both concern the same conduct, such that one of the sentences must be stayed under section 654. We remand because the trial court has discretion where an act that is punishable in different ways by different provisions of law to punish a defendant under either of such provisions.

Authority:

PEN 654

People v. Mani (2022) 74 Cal.App.5th 343, 351

Discretion, Standard of review

Case 000958

Posted on by Gary McCurdy

Error and/or relief

The court abused its discretion by denying diversion because its finding that the defendant is ineligible for diversion is not supported by substantial evidence. Accordingly, we conditionally reverse and remand with instructions for the trial court to reconsider defendant’s application for mental health diversion.

First Holding:

The Legislature enacted Penal Code sections 1001.35 and 1001.36 to authorize trial courts to grant pretrial mental health diversion to defendants diagnosed with qualifying mental disorders. To be eligible for mental health diversion, a defendant must meet two requirements.

One, the 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 two, the defendant’s mental disorder must be a significant factor in the commission of the offense.

Authority:

PEN 1001.36(b)(1) and (b)(2)

Gomez v. Superior Court (2025) 113 Cal.App.5th 671, 677

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

Second Holding:

Among the express purposes of the diversion program is to increase diversion of individuals with mental disorders to mitigate the individuals’ entry and reentry into the criminal justice system while protecting public safety.

The court must find a causal connection unless there is clear and convincing evidence that the mental disorder was not a motivating factor, causal factor, or contributing factor to the defendant’s involvement in the alleged offense.

Eligibility no longer turned on findings to the court’s satisfaction. The statute requires the court to find that the defendant’s mental disorder was a significant factor unless clear and convincing evidence demonstrates otherwise.

And it is the prosecution’s burden to provide clear and convincing evidence to overcome the presumption.

Authority:

PEN 1001.35(a)

PEN 1001.36(b)

Siam v. Superior Court (2026) 118 Cal.App.5th 67, 80

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

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 891

People v. Cabalar (2025) 117 Cal.App.5th 41, 52

Gomez v. Superior Court (2025) 113 Cal.App.5th 671, 688

Third Holding:

Once a defendant meets the eligibility requirements, the trial court must then determine whether a defendant is suitable for diversion using the four criteria outlined in section 1001.36(c): (1) A qualified mental health expert has determined the defendant’s symptoms would respond to mental health treatment; (2) the defendant has consented to diversion and waived the right to a speedy trial; (3) the defendant has agreed to comply with treatment as a condition of diversion, and (4) the court has determined the defendant will not pose an unreasonable risk of danger to public safety if treated in the community.

Authority:

PEN 1001.36(c)

Lacour v. Superior Court (2025) 110 Cal.App.5th 391, 400-401

Fourth Holding:

We review a trial court’s ruling on an application for mental health diversion for 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 express or implied factual findings that are not supported by substantial evidence. By definition, substantial evidence requires evidence and not mere speculation.

Authority:

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

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

Fifth Holding:

In reviewing a trial court’s finding that a fact has been proved by clear and convincing evidence, the question before the appellate court is 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.

In this context, 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 defendant’s mental disorder was not a motivating factor, causal factor, or contributing factor to the defendant’s involvement in the alleged offense.

To answer that question, we review 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.

(Gary note: The opinion goes on to recite details specific to this case on the question whether the mental disorder contributed to the offense, and concluded that there was not clear and convincing evidence to overcome the presumption that it did. The details are fact-specific and of no value in the context of these summaries, because unpublished decisions cannot be cited for comparison or authority or any other purpose.)

Authority:

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

Discretion, Sentencing

Case 000934

Posted on by Gary McCurdy

Error and/or relief

It is not clear whether the court intended to run count 2 concurrently or consecutively. The court stated it was to be run concurrently, but when stating the sentence imposed, it appeared to run the counts consecutively. We remand for clarification of the court’s actual intended sentence.

Holding:

In the course of explaining the sentence to be imposed, the trial court stated that, under section 1170.15, but the trial court said that under Woodworth, it had discretion to impose a concurrent sentence (it said a “current” sentence), and that it was doing so.

On all the remaining counts, the court imposed the sentences concurrently. But when the court announced the sentence, the calculation was based on running count 2 full term consecutively. It appears appropriate under these circumstances to reverse the sentence and remand the matter to permit the trial court to clarify its sentence.

Authority:

Pen 1170.15

People v. Woodworth (2016) 245 Cal.App.4th 1473

People v. Garcia (1997) 59 Cal.App.4th 834, 838-839

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

Case 000926

Posted on by Gary McCurdy

Error and/or relief

We conclude that the juvenile court erred when it found all five statutory criteria weigh in favor of transferring the minor to criminal court under Welfare and Institutions Code section 707(a)(3)(A)–(E)), and when it found him not amenable to rehabilitation.

(Gary note: After setting out the holdings I have listed below, the opinion goes into great detail analyzing the evidence in the case under the criteria required to be considered by the juvenile court in deciding whether to retain the minor in juvenile court or to transfer the minor to adult court. The analysis is quite extensive and completely fact-heavy. Since an unpublished opinion cannot be cited as authority, the court’s analysis could not be used in any briefing to compare and contrast with any other defendant’s scenario. So I have not included that portion of the opinion.)

First Holding:

With respect to whether the minor can be rehabilitated within the two-year period the juvenile court may exercise jurisdiction over him given his age and the success of previous attempts by the juvenile court to rehabilitate the minor, the prosecution failed to meet its burden of proving these criteria favor transfer to criminal court and, therefore, there is insufficient evidence to support the juvenile court’s findings in the prosecution’s favor on these issues.

Although the weight to be given each of the five criteria is within the juvenile court’s discretion, and the court has the discretion to conclude that one or more of the five criteria predominate so as to determine the result, even though some or all of the other criteria might point to a different result, the juvenile court’s ultimate finding that the minor is not amenable to rehabilitation is unsupported by substantial evidence.

Authority:

In re O.F. (2026) 119 Cal.App.5th 133, 159

In re E.P. (2023) 89 Cal.App.5th 409, 417

Second Holding:

Where, as here, the juvenile court has abused its discretion in evaluating the evidence and applying the operative legal standards, it is appropriate to remand the matter so the court may reconsider the evidence and its ultimate determination through the lens of amenability to rehabilitation.

Authority:

In re O.F. (2026) 119 Cal.App.5th 133, 162

In re S.S. (2023) 89 Cal.App.5th 1277, 1288

J.N. v. Superior Court (2018) 23 Cal.App.5th 706, 714–715 [exercises of discretion must be guided by applicable legal principles]

Third Holding:

When a minor age 16 or older is alleged to have committed a felony, the prosecution may move to transfer the minor to criminal court. Upon the motion, the juvenile court must order the probation officer to submit a report on the minor’s behavioral patterns and social history. The parties may submit other relevant evidence’ in connection with the transfer motion. In determining whether to transfer a minor to criminal court, the juvenile court shall consider the criteria specified in subparagraphs (A) to (E) of section 707, subdivision (a)(3).

These criteria are: (1) the degree of criminal sophistication by the minor; (2) whether the minor can be rehabilitated prior to the expiration of the juvenile court’s jurisdiction; (3)the minor’s previous delinquent history; (4) the success of previous attempts by the juvenile court to rehabilitate the minor; and (5) the circumstances and gravity of the offense alleged in the petition to have been committed by the minor.

Section 707 also sets forth a nonexhaustive list of factors relevant to each of the five criteria. And consideration of these factors is now mandatory rather than discretionary.

Authority:

WIC 707

In re O.F. (2026) 119 Cal.App.5th 133, 158-159, 160

In re Miguel R. (2024) 100 Cal.App.5th 152, 164-165

Fourth Holding:

As amended by AB 2361, section 707 now provides that in order to find that the minor should be transferred to a court of criminal jurisdiction, the court shall find by clear and convincing evidence that the minor is not amenable to rehabilitation while under the jurisdiction of the juvenile court.

This changed the finding a juvenile court must make before ordering a transfer in two ways: (1) raising the standard of proof; and (2) requiring a new specific finding regarding amenability to rehabilitation.

It also amended section 707 to require the court to recite the basis for its decision in an order that includes the reasons supporting the court’s finding that the minor is not amenable to rehabilitation while under the jurisdiction of the juvenile court.

Authority:

In re S.S. (2023) 89 Cal.App.5th 1277, 1284

Fifth Holding:

The weight to be given to each of these criteria is within the court’s discretion. However, to transfer a minor to criminal court, the juvenile court must ultimately find, by clear and convincing evidence, that the minor is not amenable to rehabilitation while under the jurisdiction of the juvenile court.

The prosecution bears the burden of proof. Nothing in section 707 indicates that the court is required to give equal weight to each of the five criteria or that it would necessarily be an abuse of discretion to find that one criterion outweighed the other criteria.

This standard requires a finding of high probability The evidence must be so clear as to leave no substantial doubt; sufficiently strong to command the unhesitating assent of every reasonable mind.

Authority:

Kevin P. v. Superior Court (2020) 57 Cal.App.5th 173, 186

D.W. v. Superior Court (2019) 43 Cal.App.5th 109, 116

In re O.F. (2026) 119 Cal.App.5th 133, 159, 161

C.S. v. Superior Court (2018) 29 Cal.App.5th 1009, 1035

In re Miguel R. (2024) 100 Cal.App.5th 152, 167

In re E.P. (2023) 89 Cal.App.5th 409, 417

Conservatorship of O.B. (2020) 9 Cal.5th 989, 998, fn. 2

In re S.S. (2023) 89 Cal.App.5th 1277, 1286

Sixth Holding:

We review the juvenile court’s ruling on a transfer motion for abuse of discretion. The court’s factual findings are reviewed for substantial evidence, and its legal conclusions are reviewed de novo.

A decision based on insufficient evidence or the court’s erroneous understanding of applicable law is subject to reversal. But we do not reweigh the evidence and we do not substitute our discretion for the discretion exercised by the trial court.

We draw all reasonable inferences in support of the court’s findings, not against them. We are concerned only with whether the circumstances reasonably justify the trier of fact’s findings. When evidence reasonably justifies the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.

Authority:

In re Miguel R. (2024) 100 Cal.App.5th 152, 165, 169

Kevin P. v. Superior Court (2020) 57 Cal.App.5th 173, 187

In re J.S. (2024) 105 Cal.App.5th 205, 211