Category Archives: Discretion

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

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

Case: 000358

Posted on by Gary McCurdy

Error and/or relief

The matter is remanded for the trial court to properly consider its discretion on whether to strike the prior serious felony conviction in light of the presence of one or more mitigating circumstances enumerated in section 1385(e), in the absence of a finding of danger to public safety.

First Holding:

Senate Bill No. 81, effective January 1, 2022, added subdivision (c) to section 1385. Section 1385(c) provides, “(1) 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. (2) In exercising its discretion under [subdivision (c)], the court shall consider and afford great weight to evidence offered by the defendant to prove that any of the mitigating circumstances in [the subparagraphs to subdivision (c)(2)] 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.

The mitigating circumstances identified in the subparagraphs include, among others, that multiple enhancements are alleged in a single case. In this instance, all enhancements beyond a single enhancement shall be dismissed. And they include that the application of an enhancement could result in a sentence of over 20 years. In this instance, the enhancement shall be dismissed.

Authority:

PEN 1385

Second Holding:

Absent a danger to public safety, the presence of an enumerated mitigating circumstance will generally result in the dismissal of an enhancement unless the sentencing court finds substantial, credible evidence of countervailing factors that may nonetheless neutralize even the great weight of the mitigating circumstance, such that dismissal of the enhancement is not in furtherance of justice. This furtherance of justice inquiry requires a trial court’s ongoing exercise of discretion. Thus, notwithstanding the presence of a mitigating circumstance, trial courts retain their discretion to impose an enhancement based on circumstances long deemed essential to the furtherance of justice inquiry

Authority:

People v. Walker (2024) 16 Cal.5th 1024, 1033–1036

Third Holding:

In determining whether dismissing an enhancement would endanger public safety, the plain words of the statute do not support a trial court’s singular focus on whether the defendant currently poses a danger. 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 will impact the length of the defendant’s sentence. Thus, a currently dangerous defendant who will be released from prison within a short timeframe might be found by the trial court to pose a greater danger to the public than a defendant who is currently dangerous but who has no prospect of release from prison until he is elderly.

Authority:

People v. Gonzalez (2024) 103 Cal.App.5th 215, 225, 228

Fourth Holding:

We review a trial court’s decision not to strike a sentence enhancement under section 1385 for abuse of discretion. The abuse of discretion standard is highly deferential. When a discretionary power is statutorily vested in the trial court, its exercise of that discretion must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.

We presume that the trial court acted to achieve legitimate sentencing objectives. The burden is on the party challenging the sentencing decision to show that the court abused its discretion. We may not presume error from a silent record. Unless the record affirmatively demonstrates otherwise, the trial court is deemed to have considered all the relevant sentencing factors set forth in the rules. In addition as a general rule a trial court is presumed to have been aware of and followed the applicable law. Thus, where a statement of reasons is not required and the record is silent, a reviewing court will presume the trial court had a proper basis for a particular finding or order. A trial court abuses its discretion by rendering a sentencing decision based on impermissible factors or on an incorrect legal standard. Defendants are entitled to sentencing decisions made in the exercise of the informed discretion.

Authority:

People v. Carmony (2004) 33 Cal.4th 367, 371

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

People v. Knowles (2024) 105 Cal.App.5th 757, 765

People v. Stowell (2003) 31 Cal.4th 1107, 1114

People v. Knoller (2007) 41 Cal.4th 139, 156

People v. Nakano (2023) 89 Cal.App.5th 623, 635 [an abuse of discretion occurs when the trial court applies the wrong legal standard]

People v. Flores (2020) 9 Cal.5th 371, 431

Fifth Holding:

When the trial court does not conclude that dismissal would result in a danger to public safety, the court must assign great weight to any mitigating factors, if present, and exercise its discretion in determining whether dismissal would be in the furtherance of justice. The term “great weight” did not create a presumption in favor of dismissal, but should be interpreted to mean that absent a danger to public safety, the presence of an enumerated mitigating circumstance will generally result in the dismissal of an enhancement unless the sentencing court finds substantial, credible evidence of countervailing factors that may nonetheless neutralize even the great weight of the mitigating circumstance, such that dismissal of the enhancement is not in furtherance of justice.

Without credible evidence to support findings on aggravating circumstances, judges could disregard mitigating factors without a proper basis for doing so. This would be incompatible with the great weight the Legislature has attached to the enumerated mitigating circumstances. Section 1385(c)(2)’s mandate to give great weight to enumerated mitigating circumstances requires a sentencing court to engage in a holistic balancing with special emphasis on the enumerated mitigating factors.

Authority:

People v. Walker (2024) 16 Cal.5th 1024, 1033–1036

People v. Ortiz (2023) 87 Cal.App.5th 1087, 1094

Sixth Holding:

On appeal, we presume that a judgment or order of the trial court is correct, all intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown.

Authority:

People v. Giordano (2007) 42 Cal. 4th 644, 666

Seventh Holding:

The court did not explicitly conclude that dismissal of the enhancements would result in a danger to public safety. Indeed, the trial court did not discuss public safety in its findings, nor did it make any statements related to the possibility of the defendant committing further crimes if his sentence were to be reduced, and he were to be released early, following dismissal of the enhancements. when the trial court does not conclude that dismissal would result in a danger to public safety, the court must assign “great weight” to any mitigating factors, if present, and exercise its discretion in determining whether dismissal would be in the furtherance of justice.

Walker and Gonzalez had not been decided at the time of the trial court’s ruling, and that in making its findings, the trial court did not use the word “mitigating factors,” or specifically discuss the mitigating factors listed under section 1385(c). While we acknowledge that a silent record does not, on its own, reflect an abuse of discretion , we find it is not evident from the instant record and findings that the trial court would have still exercised its discretion not to dismiss the enhancement if it had the guidance provided in those cases. The trial court did not make any indication that the defendant would pose a danger to public safety if he were to be released early as a result of a reduced sentence.

Further, while the trial court’s final order cited the serious nature of the defendant’s offenses, as well as his criminal history. it is unclear if such findings reflected the trial court engaging in a holistic balancing with special emphasis on the enumerated mitigating factors as required under Walker. Under these circumstances, we conclude that remand for resentencing is required. In reaching our decision, we do not express any position on how the court should exercise its discretion under section 1385 regarding dismissal of the section 667(a) enhancement.

Authority:

People v. Stowell (2003) 31 Cal.4th 1107, 1114

People v. Salazar (2023) 15 Cal.5th 416, 424 [noting that if the trial court is unaware of the scope of its informed discretion at the time of sentencing and fails to exercise it in making a sentencing decision, the appellate court must 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]

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

People v. Walker (2024) 16 Cal.5th 1024, 1036

Discretion, Duty of the court, Effective assistance of counsel, Sentencing, Sixth Amendment

Case: 000353

Posted on by Gary McCurdy

Error and/or relief

The trial court violated the defendant’s Sixth Amendment rights by imposing a sentence based on aggravating circumstances that were neither admitted by him nor tried to a jury. The trial court conducted an inadequate inquiry when the defendant requested that new counsel be substituted.

[GARY NOTE: The unpublished opinion lays out several observations that it characterizes as possibly arguable deficiencies in counsel’s performance that would support a finding that it would be necessary to substitute new counsel as the defendant requested. Many of the specifics have been redacted from the filed opinion itself, as the Marsden hearing is a confidential inquiry conducted outside the presence of the prosecution and the public, and the matters stated by any participants (the defendant, the attorney for the defendant, the court) at the hearing are not subject to public disclosure.]

First Holding:

The defendant is entitled to resentencing because the trial court violated his Sixth Amendment rights by relying on aggravating circumstances based on facts that had not been admitted or tried to a jury. Although the defendant did not preserve this claim in the trial court, his failure to do so does not forfeit his Sixth Amendment right to a jury trial.

Authority:

People v. French (2008) 43 Cal.4th 36, 47-48

Second Holding:

In Cunningham, the United States Supreme Court held that, except for prior conviction allegations, the Sixth Amendment requires any fact that exposes a defendant to a greater potential sentence to be found by a jury beyond a reasonable doubt. The sentencing scheme in effect in California at the time violated the Sixth Amendment right to a jury trial because it allowed a defendant’s prison sentence to be increased beyond the statutory maximum based on facts that had not been found true beyond a reasonable doubt by a jury or admitted by the defendant. The statutory maximum, for Sixth Amendment purposes, is the maximum sentence the court may impose without finding any additional facts beyond those necessary to support the verdict. Cunningham explained that California could comply with the Sixth Amendment either by requiring jury findings for any facts necessary to impose an aggravated sentence or, alternatively, by authorizing sentencing courts to exercise broad discretion within a statutory range.

Authority:

Cunningham v. California (2007) 549 U.S. 270, 281, 294

People v. Lynch (2024) 16 Cal.5th 730, 746-747

Third Holding:

California’s current sentencing scheme (in effect at the time of the defendant’s sentencing) adopts the first option Cunningham outlined. Under section 1170(b), when a statute specifies three possible terms, the court must order imposition of a sentence not to exceed the middle term unless there are circumstances in aggravation of the crime that justify the imposition of a term of imprisonment exceeding the middle term and the facts underlying those circumstances have been stipulated to by the defendant or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial. After revoking the defendant’s probation, the court found in aggravation that the crime involved great violence, great bodily harm, threats of great bodily harm, and other acts disclosing a high degree of cruelty, viciousness, or callousness. But this aggravating factor was not admitted or otherwise proved to the trier of fact.

Authority:

Cunningham v. California (2007) 549 U.S. 270, 294

People v. Lynch (2024) 16 Cal.5th 730, 748

Fourth Holding:

We apply the rigorous Chapman standard of review to determine whether the trial court’s reliance on unproven aggravating circumstances was prejudicial. Under that standard, the violation is prejudicial unless we can conclude, beyond a reasonable doubt, that a jury would have found true all the aggravating facts upon which the challenged sentence was based. The defendant is entitled to a remand for resentencing unless the appellate court can conclude that the omission of a jury trial was harmless beyond a reasonable doubt as to every aggravating fact the trial court used to justify an upper term sentence. Put another way, the defendant is entitled to a remand unless no reasonable jury would have found in favor of the defendant as to any of the aggravating facts relied upon by the trial court. In conducting this analysis, moreover, we may not assume that the record contains all the evidence that would have been presented had the aggravating circumstances been tried to a jury.

Authority:

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

People v. Lynch (2024) 16 Cal.5th 730, 768, 775

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

Fifth Holding:

Further, because the court imposed an enhancement for great bodily injury under section 12022.7, it was improper to also rely on great bodily injury as a factor in aggravation for purposes of imposing the upper term, although that error is subject to harmless error analysis. The court could, without running afoul of section 1170(b)(5), rely on other aggravating circumstances independent of the great bodily injury enhancement, such as a finding that the offense involved great violence or reflected a high degree of cruelty, viciousness, or callousness.

Authority:

PEN 1170(b)(5) [a court cannot impose an upper term by using the fact of any enhancement upon which sentence is imposed under any provision of law]

Rules of Court, rule 4.421(a)(1)

People v. Gutierrez (1992) 10 Cal.App.4th 1729, 1735-1736

People v. Castaneda (1999) 75 Cal.App.4th 611, 614-615

Sixth Holding:

When a defendant requests that his appointed counsel be relieved and new counsel be appointed under Marsden, the trial court must give the defendant an opportunity to explain his concerns about his counsel’s performance and provide examples of deficiencies. The defendant is entitled to substitute counsel when the record clearly shows that the appointed counsel is not providing adequate representation. The trial court abuses its discretion when the defendant has shown that a failure to replace the appointed attorney would substantially impair the right to assistance of counsel. The trial court also abuses its discretion if it does not conduct an adequate inquiry into the defendant’s motion. When the defendant has identified shortcomings by counsel, the court must obtain counsel’s response and conduct any further inquiry that is needed to determine whether counsel had adequate explanations for all of the defendant’s complaints.

The critical factual inquiry in a Marsden hearing will often involve whether counsel consulted sufficiently with their client, adequately investigated the facts, and properly prepared for the relevant hearing. When the trial court’s inquiry is deficient, we remand the case for a new Marsden hearing. On this record, the trial court lacked an adequate basis to determine whether counsel had properly investigated and prepared the defendant’s mitigation case for the sentencing hearing. Likewise, we lack an adequate record to review the trial court’s denial of Marsden relief. On remand, the trial court should conduct a Marsden hearing to determine whether the defendant is entitled to substitute counsel for purposes of his resentencing.

Authority:

People v. Marsden (1970) 2 Cal.3d 118, 123-124

People v. Taylor (2010) 48 Cal.4th 574, 599

People v. Carter (2024) 15 Cal.5th 1092, 1099, 1102-1104

People v. Ng (2022) 13 Cal.5th 448, 500

People v. Abilez (2007) 41 Cal.4th 472, 488

People v. Ivans (1992) 2 Cal.App.4th 1654, 1666 [stating the trial court must make a careful inquiry before it can intelligently rule on the Marsden motion]

Discretion, Eighth Amendment, Equal protection, Fines and fees, Sentencing, Standard of review

Case: 000346

Posted on by Gary McCurdy

Error and/or relief

The court imposed a minimum $300 restitution fine and an assessment of $70 in ancillary costs. The trial court held a hearing and determined that the defendant had the ability to pay. We affirm the order on ancillary costs but remand to give the defendant the opportunity to further challenge the restitution fine under Kopp.

First Holding:

A person convicted of a crime can, and in some cases must, be ordered to pay a variety of punitive fines along with other nonpunitive ancillary costs. Some statutes require the imposition of fines and ancillary costs regardless of a defendant’s ability to pay. Other statutes require a finding of the ability to pay or allow for its consideration. Restitution fines under section 1202.4 are considered punitive fines, whereas assessments to fund court facilities and operations are considered ancillary costs. The distinction between punitive fines and other imposed payments is important because it impacts whether a given form of required payment is initially challenged under, and then reviewed under, the constitutional excessive fines clauses, or under the constitutional provision for equal protection.

Authority:

People v. Kopp (2025) 19 Cal.5th 1, 11, 12, 14-15, 18 [we analyze fines and ancillary costs separately because different justifications support each, and different constitutional protections apply]

Second Holding:

If requested by a defendant, the court must consider the defendant’s inability to pay before imposing a court operations assessment under section 1465.8(a)(1), or a court facilities assessment under Government Code section 70373(a)(1).

Authority:

People v. Kopp (2025) 19 Cal.5th 1, 25-26, 30 [in light of the Legislature’s provision of fee waivers to indigent civil litigants, equal protection principles require a court, upon request, to consider a defendant’s inability to pay before imposing either assessment]

Third Holding:

In reaching its conclusion that the defendant did not meet his burden to show his inability to pay the ancillary costs, the court considered his potential to earn wages while in prison and his general ability to work, which was within its discretion to do. The trial court did not state that it was relying solely on the defendant’s ability to earn wages while in prison. The court found simply that he is capable of working. The trial court’s conclusion that he had the ability to pay $70 in court assessments was not arbitrary or irrational.

Authority:

People v. Fish (2024) 102 Cal.App.5th 730, 739 [collecting cases]

People v. Santos (2019) 38 Cal.App.5th 923, 934 [factors to consider in determining ability to pay may include, among others, the defendant’s realistic ability to earn prison wages or obtain employment]

People v. Castellano (2019) 33 Cal.App.5th 485, 490, disapproved in part as stated in Kopp, at p. 23, fn. 17. 490 [trial court may consider potential prison pay during the period of incarceration” in determining inability to pay]

People v. Cervantes (2020) 46 Cal.App.5th 213, 229 [ability to pay includes the ability both to obtain prison wages and to earn money after release from custody]

People v. Carmony (2004) 33 Cal.4th 367, 377 [a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it]

Fourth Holding:

Punitive fines are subject to a different approach. There is no due process requirement to hold an ability to pay hearing before imposing every punitive fine. Sentencing judges may, and often do, consider the defendant’s ability to pay, but in such circumstances they are guided by sound judicial discretion rather than by constitutional mandate.

Authority:

People v. Kopp (2025) 19 Cal.5th 1, 11, 23

San Antonio Indep. Sch. Dist. v. Rodriguez (1973) 411 U.S. 1, 22

Fifth Holding:

A court has discretion to impose a nonexcessive fine as punishment, even on indigent defendants. Thus, the excessive fines analysis, which considers ability to pay, is the proper vehicle to challenge punitive fines. The touchstone of the constitutional inquiry for excessive fines is the principle of proportionality: The amount of the forfeiture must bear some relationship to the gravity of the offense that it is designed to punish. While ability to pay may be part of the proportionality analysis, it is not the only factor.

Authority:

U.S. Const., 8th Amend.

Cal. Const., art. I, sec. 17

People v. Kopp (2025) 19 Cal.5th 1, 21, 23

United States v. Bajakajian (1998) 524 U.S. 321, 334

Sixth Holding:

Under section 1202.4(b), the restitution fine shall be set at the discretion of the court and commensurate with the seriousness of the offense. The court shall impose the restitution fine unless it finds compelling and extraordinary reasons for not doing so and states those reasons on the record. A defendant’s inability to pay shall not be considered a compelling and extraordinary reason not to impose a restitution fine. Inability to pay may be considered only in increasing the amount of the restitution fine in excess of the minimum fine.

Authority:

PEN 1202.4

Seventh Holding:

A court’s ruling on ability to pay is reviewed for abuse of discretion. The defendant bears the burden of demonstrating his or her inability to pay the imposed amounts.

Authority:

People v. Kopp (2025) 19 Cal.5th 1, 21, 24

People v. Wilson (2023) 14 Cal.5th 839, 868

People v. Lowery (2020) 43 Cal.App.5th 1046, 1057, 1053

Discretion, Effective assistance of counsel, Sentencing

Case: 000307

Posted on by Gary McCurdy

Error and/or relief

We vacate the defendant’s sentence and remand the matter for further proceedings on the firearm enhancements under Penal Code section 1385(c).

First Holding:

The defendant contends the court did not consider dismissing any of his four firearm enhancements under section 1385(c). He acknowledges his counsel didn’t ask the court to dismiss any of the enhancements, and he contends his attorney was constitutionally ineffective in that failure. The Attorney General contends the defendant has forfeited the issue. We exercise our discretion to consider the issue nevertheless, to resolve the defendant’s ineffective assistance of counsel claim. Trial courts have discretion to strike or dismiss firearm enhancements in the interest of justice under section 1385, which states that the court shall dismiss an enhancement if it is in the furtherance of justice to do so.

Authority:

PEN 12022.5(c)

PEN 1385(c)(1)

Second Holding:

Effective January 1, 2022, section 1385(c)(2) states sentencing courts shall consider and afford great weight to evidence offered by the defendant to prove certain enumerated mitigating circumstances, and 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. Of the nine mitigating circumstances listed in the statute, the only one that conceivably applies to the defendant is subparagraph (B): that multiple enhancements are alleged in a single case. Subparagraph (B) provides, “In this instance, all enhancements beyond a single enhancement shall be dismissed.”

Authority:

PEN 1385(c)(2)(B)

Third Holding:

The presence of an enumerated mitigating circumstance does not create a presumption in favor of dismissal. Instead, absent a finding that dismissal would endanger public safety, a court must assign significant value to the enumerated mitigating circumstances when they are present. In practice, the presence of an enumerated mitigating circumstance will generally result in the dismissal of an enhancement unless the sentencing court finds substantial, credible evidence of countervailing factors that may nonetheless neutralize even the great weight of the mitigating circumstance, such that dismissal of the enhancement is not in furtherance of justice.

Authority:

People v. Walker (2024) 16 Cal.5th 1024, 1032–1033

Fourth Holding:

However, section 1385(c) does not mean that, whenever a listed mitigating circumstance is present, the trial court must dismiss all enhancements unless it finds dismissal would endanger public safety. Even without a finding that dismissal would endanger public safety, the trial court retains the discretion to impose or dismiss enhancements provided that it assigns significant value to the presence of any listed mitigating circumstances. We can’t tell whether the court considered the requirements of section 1385. Remand therefore is necessary.

Authority:

People v. Bravo (2025) 107 Cal.App.5th 1144, 1157

People v. Walker (2024) 16 Cal.5th 1024, 1029

Fifth Holding:

When considering whether to strike a firearm enhancement, a trial court considers the same factors considered when handing down a sentence in the first instance.

Authority:

Nazir v. Superior Court (2022) 79 Cal.App.5th 478, 497

Discretion, Probation Parole PRCS, Sentencing, Standard of review

Case: 000304

Posted on by Gary McCurdy

Error and/or relief

The defendant filed a petition for dismissal citing three different Penal Code sections—sections 1203.4, 1203.4a, and 1203.41. The trial court denied the petition based on section 1203.41, under which the defendant was not entitled to relief. We reverse and remand to allow the court to consider the defendant’s claim for relief under section 1203.4.

First Holding:

The trial court’s denial of relief under any of these statutes (1203.4, 1203.41, 1203.4a) is reviewed for abuse of discretion.

Authority:

People v. McLernon (2009) 174 Cal.App.4th 569, 572

Second Holding:

Section 1203.4 authorizes the trial court to expunge a criminal record if the defendant has fulfilled the conditions of probation for the entire period, the defendant was discharged before the probation period ended, or if the court believes relief should be granted in the interests of justice.

Authority:

PEN 1203.4

Third Holding:

Section 1203.4a authorizes dismissal of charges against defendants who are convicted of misdemeanors but were not granted probation.
Authority:

Authority:

PEN 1203.4a

Fourth Holding:

Section 1203.41 allows an individual convicted of a felony, under certain circumstances, to withdraw a guilty or nolo contendere plea, or set aside a guilty verdict in the interests of justice, in the court’s discretion. The crime to which the defendant pleaded guilty is a wobbler. In this case, because the defendant was sentenced to probation with 364 days in county jail, it is a misdemeanor offense.

Authority:

PEN 1203.41

People v. McElroy (2005) 126 Cal.App.4th 874, 880

Fifth Holding:

it appears the trial court may have been confused by the defendant’s petition, which sought relief under all three statutes. Relief was not authorized to the defendant under sections 1203.4a and 1203.41, and the court did not err in denying relief under section 1203.41. When a trial court evaluates a petition under the incorrect statute or misunderstands the scope of its discretion, this is an abuse of discretion and the case must be reversed and remanded for an exercise of informed discretion, unless the record clearly indicates the same result would follow.

Authority:

People v. Fuhrman (1997) 16 Cal.4th 930, 944 [where the record affirmatively discloses that the trial court misunderstood the scope of its discretion, remand to the trial court is required]

People v. Parker (2013) 217 Cal.App.4th 498, 501–502 [case remanded because trial court mistakenly believed an imposed but suspended sentence is a bar to section 1203.4 relief]

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