Category Archives: Discretion

Appellate Principles, Discretion, Sentencing, Statutory interpretation

Case 000855

Posted on by Gary McCurdy

Error and/or relief

The trial court erred under section 654 by imposing concurrent sentences on three separate convictions arising from the same single act.

First Holding:

Section 654(a) provides that an act or omission that is punishable in different ways by different provisions of law may be punished under either of such provisions, but in no case shall the act or omission be punished under more than one provision. When a court determines that a conviction falls within the meaning of section 654, it is necessary to impose sentence but to stay the execution of the duplicative sentence. The imposition of concurrent sentences is precluded by section 654 because under such a sentence the defendant is deemed to be subjected to the term of both sentences although they are served simultaneously.

Authority:

PEN 654

People v. Duff (2010) 50 Cal.4th 787, 796

People v. Mani (2022) 74 Cal.App.5th 343, 380 [The trial court is required to impose judgment on each count, which involves selecting a term, and then staying execution of the duplicative sentence, the stay to become permanent upon defendant’s service of the portion of the sentence not stayed.]

Second Holding:

Section 654 provides the trial court with discretion to impose and execute the sentence of either term, which could result in the trial court imposing and executing the shorter sentence rather than the longer sentence.

Authority:

PEN 654

People v. Mani (2022) 74 Cal.App.5th 343, 379

Third Holding:

One provision of the One Strike law, section 667.61(h)), states: “Notwithstanding any other law, probation shall not be granted to, nor shall the execution or imposition of sentence be suspended for, a person who is subject to punishment under this section.”

There is a split of authority over whether this provision precludes a sentencing court from staying execution of a One Strike sentence under section 654. We conclude that People v. Govan has the better reasons view of the interplay between section 667.61(h) and section 654.

Authority:

People v. Caparaz (2022) 80 Cal.App.5th 669

People v. Govan (2023) 91 Cal.App.5th 1015, 1032-1035 [Based on the Govan court’s review of legislative history, the “no suspension clause” must be read in the context of a bar against the grant of probation, and does not supersede section 654’s prohibition against multiple punishment, disagreeing with Caparaz.]

Fourth Holding:

When we interpret a statute, our fundamental task is to determine the Legislature’s intent so as to effectuate the law’s purpose.

We first examine the statutory language, giving it a plain and commonsense meaning. If the language is clear, courts must generally follow its plain meaning unless a literal interpretation would result in absurd consequences the Legislature did not intend.

If the statutory language permits more than one reasonable interpretation, courts may consider other aids, such as the statute’s purpose, legislative history, and public policy.

Furthermore, we consider portions of a statute in the context of the entire statute and the statutory scheme of which it is a part, giving significance to every word, phrase, sentence, and part of an act in pursuance of the legislative purpose.

Authority:

People v. Reynoza (2024) 15 Cal.5th 982, 989–990

Fifth Holding:

Courts have recognized that the suspension clause’s language has a technical meaning unique to a grant of probation. We therefore conclude the Legislature intended for section 667.61(h)’s suspension clause to have its technical, probation related meaning.

Indeed, as used in section 1203(a), “probation” means the suspension of the imposition or execution of a sentence and the order of conditional and revocable release in the community under the supervision of a probation officer.

When the Legislature uses a term of art, a court construing that use must assume that the Legislature was aware of the ramifications of its choice of language. We therefore conclude the Legislature intended for section 667.61(h)’s suspension clause to have its technical, probation related meaning.

Authority:

PEN 7(c) [Words and phrases shall be construed according to the context and the approved usage of the language, but technical words and phrases, and any others as may have acquired a peculiar and appropriate meaning in law, shall be construed according to that peculiar and appropriate meaning.]

People v. Govan (2023) 91 Cal.App.5th 1015, 1033

People v. Superior Court (Himmelsbach) (1986) 186 Cal.App.3d 524, 536, fn. 8 [the words ‘suspension of execution’ are employed in conjunction with a grant of probation and have developed into terms of art], (disapproved on another ground by People v. Norrell (1996) 13 Cal.4th 1, 7, fn. 3)

People v. Borynack (2015) 238 Cal.App.4th 958, 965

Ruiz v. Podolsky (2010) 50 Cal.4th 838, 850, fn. 3

Sixth Holding:

This interpretation is consistent with how some courts have interpreted similarly worded statutes. Many related criminal statutes with related purposes contain language identical to section 667.61(h). Courts have not historically interpreted similar statutory provisions as precluding a stay under section 654.

Authority:

People v. Gonzalez (2017) 2 Cal.5th 1138, 1141 [We consider the language of the entire scheme and related statutes, harmonizing the terms when possible.]

People v. Barela (1983) 145 Cal.App.3d 152, 160 [holding section 1203.06–with similar language–does not preclude a stay under section 654]

People v. Superior Court (Himmelsbach) (1986) 186 Cal.App.3d 524, 536, fn. 8 [rejecting as unpersuasive the contention that a prohibition on suspension of execution of sentence under repealed section 12311 precluded a stay under section 654]

Seventh Holding:

We presume that when the Legislature enacted section 667.61 in 1994 and amended it in 2006, the Legislature was aware of how courts had interpreted identical statutory language and that the Legislature intended for that interpretation to also apply to section 667.61.

Where legislation has been judicially construed and a subsequent statute on the same or an analogous subject uses identical or substantially similar language, we may presume that the Legislature intended the same construction, unless a contrary intent clearly appears.

Authority:

People v. Seumanu (2015) 61 Cal.4th 1293, 1367

Eighth Holding:

Finally, we are satisfied that interpreting section 667.61 as allowing a stay under section 654 is consistent with the One Strike law’s legislative purpose in imposing lengthy prison sentences for certain sex offenses.

Although interpreting section 667.61 this way allows for shorter sentences in some circumstances, it does not require it. Rather, it leaves the decision to the trial court’s sound sentencing discretion.

Authority:

PEN 654

People v. Reynoza (2024) 15 Cal.5th 982, 989

Ninth Holding:

When a sentencing court is unaware of the scope of its discretionary powers, 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.

In light of the presumption on a silent record that the trial court is aware of the applicable law, including statutory discretion at sentencing, we cannot presume error where the record does not establish on its face that the trial court misunderstood the scope of that discretion.

The record indicates, however, that the trial court did not understand the scope of its discretion. The court expressly stated it took no joy in imposing the harsh sentence, and that it had imposed counts concurrently wherever it could, but that it had no discretion to impose other than the harsh sentence–that the sentence it imposed were the only options.

Therefore, we must remand for resentencing given the extent of the court’s full discretion under section 654.

Authority:

People v. Salazar (2023) 15 Cal.5th 416, 424

People v. Gutierrez (2009) 174 Cal.App.4th 515, 527

(Gary note, of marginal historical interest: Prior to 1998, Penal Code section 654 had exactly the same language as it currently has, and a court was free to impose sentence on any one of the counts to which section 654 applied. See People v. Norrell (1996) 13 Cal.4th 1. In response to that Supreme Court decision, the Legislature amended section 654 to require that the court impose sentence on the count containing the longest potential term. Through AB 518, effective 1/1/2022, the Legislature restored section 654 to its former language, thus restoring to the court the discretion to choose on which count punishment should be imposed and executed.)

Appellate Principles, Discretion, Standard of review

Case 000851

Posted on by Gary McCurdy

Error and/or relief

We conclude the trial court erred when it denied mental health diversion under Penal Code section 1001.36, conditionally reverse the judgment, and remand the matter for the court to reconsider the defendant’s motion.

First Holding:

Diversion under section 1001.36 postpones criminal proceedings to allow the defendant to undergo mental health treatment, subject to specified conditions. It is intended to mitigate the entry and reentry of people with mental disorders into the criminal justice system by addressing their unique needs while simultaneously protecting public safety. A recognition that incarceration accomplishes little to deter lawlessness, but successful mental health treatment helps individuals and makes communities safer, led the Legislature to create and then expand this pretrial diversion.

Authority:

PEN 1001.35(a)(c)

People v. Braden (2023) 14 Cal.5th 791, 801

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 890–891

Second Holding:

To qualify for mental health diversion, defendants must meet the two eligibility criteria under section 1001.36(b), and the four suitability criteria set forth in subdivision (c) of that section.

Authority:

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

Third Holding:

Eligible defendants are suitable for diversion where (1) in the opinion of a qualified mental health expert the defendant’s mental disorder would respond to treatment; (2) the defendant consents to diversion and agrees to waive his or her speedy trial rights; (3) the defendant agrees to comply with treatment requirements; and (4) if treated in the community, the defendant will not pose an unreasonable risk of danger to public safety’ as defined in section 1170.18, which concerns the risk the defendant will commit violent felonies colloquially referred to as super strikes.

Authority:

People v. Tourville (2026) 120 Cal.App.5th 439, 452

Fourth Holding:

Even when the defendant makes a prima facie showing of meeting the statutory eligibility and suitability criteria, the court may nonetheless exercise its discretion to deny diversion.

But this residual discretion must be exercised consistent with the principles and purpose of the governing law, including the strong legislative preference for treatment of mental health disorders given the resulting benefits to both the offending individual and the community.

Where the court chooses to exercise this residual discretion to deny diversion, its statement of reasons should reflect consideration of the underlying purposes of the statute and explain why diversion would not meet those goals.

Authority:

Gomez v. Superior Court (2025) 113 Cal.App.5th 671, 679

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 892-893

Fifth Holding:

We review a trial court’s ruling on a request for mental health diversion for abuse of discretion. A court abuses its discretion when it makes an arbitrary 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:

Gomez v. Superior Court (2025) 113 Cal.App.5th 671, 687

People v. Tourville (2026) 120 Cal.App.5th 439, 453

Sixth Holding:

A ruling or decision, itself correct in law, will not be disturbed on appeal merely because given for a wrong reason. If right upon any theory of the law applicable to the case, it must be sustained regardless of the considerations which may have moved the trial court to its conclusion.

Authority:

People v. Turner (2020) 10 Cal.5th 786, 807

Seventh Holding:

The court erred in finding the defendant not suitable for diversion because of his repeated failures to comply with other forms of supervision. It was an abuse of discretion to deny diversion based on such reasoning, whether on the ground that the defendant’s symptoms would not respond to treatment  or on the ground that the recommended treatment plan would not meet his or her needs.

Authority:

PEN 1001.36(c)(1), (f)(1)(A)(i)

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 893-894

Eighth Holding:

We will conditionally reverse the judgment and remand the matter for the trial court to reconsider the defendant’s motion for mental health diversion, bearing in mind the statutory principles and purpose of the statute, including the goal of promoting increased diversion of individuals with mental disorders to mitigate their entry and reentry into the criminal justice system.

We express no opinion as to how the court should rule on remand. Still, we observe that denying diversion based on a defendant’s treatment history may be a proper exercise of discretion if the proposed treatment plan is no different from one that failed in the past.

On the other hand, a defendant’s failure to benefit from past treatment may not support an order denying diversion where the proposed treatment plan adequately addresses the defendant’s mental health needs and is significantly different from the prior treatment.

Authority:

People v. Qualkinbush (2022) 79 Cal.App.5th 879, 892, 895

People v. Russo (2026) 121 Cal.App.5th 134, 139

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 894-895

Discretion, Duty of the court, Fines and fees, Sentencing

Case 000849

Posted on by Gary McCurdy

Error and/or relief

At the resentencing hearing held under section 1172.75, the resentencing court erred by (1) imposing consecutive sentences on the defendant’s attempted murder and felon in possession of a firearm counts because the court was unaware of its discretion to impose concurrent terms, (2) not recalculating custody credits, and (3) reimposing a restitution fine under section 1202.4.

First Holding:

When the Three Strikes law applies, sentences for current qualifying offenses must be ordered to run consecutively to each other if the current offenses occur on separate occasions and do not arise from the same set of operative facts.

Conversely, where a sentencing court determines that two or more current felony convictions were either committed on the same occasion or arise from the same set of operative facts, consecutive sentencing is not required under the three strikes law, but is permissible in the trial court’s sound discretion.

Authority:

PEN 667(c)(6)

People v. Henderson (2022) 14 Cal.5th 34, 45

People v. Lawrence (2000) 24 Cal.4th 219, 233

Second Holding:

When the record shows the trial court proceeded with sentencing on the erroneous assumption it lacked discretion, remand is necessary so that the court may have the opportunity to exercise its sentencing discretion at a new sentencing hearing. Defendants are entitled to sentencing decisions made in the exercise of the informed discretion of the sentencing court, and a court that is unaware of its discretionary authority cannot exercise its informed discretion.

Authority:

People v. Brown (2007) 147 Cal.App.4th 1213, 1228

Third Holding:

The attempted murder and felon in possession of a firearm counts were based on the defendant’s possession and use of the same firearm. There is no suggestion that the defendant possessed more than one gun when he committed the offenses.

Because the attempted murder and felon in possession of a firearm counts arose from the same set of operative facts, the resentencing court had discretion to impose concurrent sentences. Remand for resentencing is appropriate as the court was unaware of its discretion, and there is no indication that had it been aware of its discretion, it would nevertheless have imposed consecutive terms.

Authority:

People v. Garcia (2008) 167 Cal.App.4th 1550, 1567

People v. Deloza (1998) 18 Cal.4th 585, 600

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

Fourth Holding:

When a felony sentence is modified during the term of imprisonment, the trial court must recalculate and credit the actual time defendant had served on his sentence prior to the modification. Where a defendant has served any portion of his sentence under a commitment based upon a judgment which judgment is subsequently declared invalid or which is modified during the term of imprisonment, such time shall be credited upon any subsequent sentence he may receive upon a new commitment for the same criminal act or acts. On remand, the resentencing court must recalculate the defendant’s custody credits for actual time served.

Authority:

People v. Buckhalter (2001) 26 Cal.4th 20, 23

Fifth Holding:

The restitution fine imposed under section 1202.4 must be vacated under section 1465.9. Effective January 1, 2025, section 1465.9 was amended to add subdivision (d), which provides 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.

Because the defendant’s restitution fine was imposed more than 10 years ago, any balance is unenforceable and uncollectable by operation of law. The fine must be vacated

Authority:

PEN 1465.9

Amelioration, Discretion, Duty of the court, Retroactivity, Sentencing, Sixth Amendment, Standard of review

Case 000842

Posted on by Gary McCurdy

Error and/or relief

In the prior appeal, the appellate court reversed the denial of the defendant’s petition for recall of sentence under section 1172.6 and ordered the trial court to grant the petition. On remand, the trial court granted the motion and redesignated the offense as three counts, and imposed the upper term.

It was error to resurrect and redesignate for sentencing counts that were dismissed in the original plea negotiations. It was also error to impose the upper term on circumstances in aggravation that were not submitted to a jury for proof beyond a reasonable doubt.

First Holding:

When the trial court granted the defendant’s petition for resentencing under section 1172.6, his judgment became nonfinal and was subject to the retroactive application of AB 333. AB 333 made changes to the law on gang enhancements and narrowed the definition of a criminal street gang.

The defendant’s admission under the former law does not satisfy the elements now required under the current law. The stipulation at the preliminary hearing that the [named gang] was an ongoing street gang that engages in a pattern of criminal activity pursuant to section 186.22(f) is insufficient under any standard to prove either the gang enhancement or the gang offense under current law.

Authority:

People v. Trent (2025) 112 Cal.App.5th 251, 262–263 [once petition for resentencing under sec. 1172.6 is granted, judgment is no longer final]

People v. Lopez (2025) 17 Cal.5th 388, 393 [AB 333 is retroactive to nonfinal judgments]

In re Estrada (1965) 63 Cal.2d 740

People v. Silva (2021) 72 Cal.App.5th 505, 526–527

Second Holding:

When a murder or attempted murder conviction is set aside under section 1172.6, the petitioner’s conviction shall be redesignated as the target offense or underlying felony for resentencing purposes if the murder or attempted murder was charged generically, and the target offense was not charged.

Authority:

PEN 1172.6(e)

Third Holding:

Section 1172.6 does not define what constitutes an underlying felony or target offense, but our high court in Arellano held that the meaning of these terms is clear—an underlying felony refers to the felony underlying a felony-murder theory, and the target offense refers to the offense the natural and probable consequence of which was murder.

Authority:

People v. Arellano (2024) 16 Cal.5th 457

People v. Lara (2025) 108 Cal.App.5th 1005 [the trial court erred by resurrecting counts dismissed in the parties’ plea agreement on resentencing]

Fourth Holding:

Application of the trial court’s resentencing discretion under section 1172.6(e) here is circumscribed by the prosecution’s exercise of charging discretion in the original proceeding. Here, that limitation is the district attorney’s election to dismiss all charges involving [victim 1] as well as the substantive gang count in return for the defendant’s plea to a single count of attempted second degree murder of [victim 2].

Authority:

People v. Arellano (2024) 16 Cal.5th 457, 476 [deeming it unlikely the Legislature intended to allow the prosecution to effectively revisit its charging decisions  every time a petitioner succeeds in setting aside a  conviction under section 1172.6]

People v. Lara (2025) 108 Cal.App.5th 1005, 1026

Fifth Holding:

There is no dispute that there is no qualifying felony for which the prosecutor could have proceeded under a theory of felony murder in this case.

Thus when resentencing the defendant, the trial court was required to redesignate his offense as a target offense—the offense of which the natural and probable consequence was the attempted murder.

In this case, conviction for attempted murder of [victim 2] was properly redesignated as assault with a semiautomatic firearm on [victim 2]. We conclude that the trial court erred by resurrecting counts stemming from conduct that the district attorney plainly chose to dismiss as part of the negotiated settlement.

These dismissed counts cannot form the predicate for relief for the defendant’s petition for resentencing. Because the defendant did not plead to any other offenses than the attempted murder of [victim 2], the target offense underlying the attempted murder of one named person is not two assaults with a firearm on two persons. Courts may not impose uncharged and unproven sentence allegations or enhancements when resentencing a successful petitioner under section 1172.6e).

Authority:

People v. Arellano (2024) 16 Cal.5th 457, 475, 477

People v. Lara (2025) 108 Cal.App.5th 1005, 1027

Sixth Holding:

Though not applicable here, had the prosecution alleged and proved a target offense in addition to the attempted murder, on successful petition under section 1172.6, the court would be limited to sentencing the defendant on the charged target offenses that were proved. The trial court under section 1172.6(d)(3) would not have been otherwise entitled to resentence the defendant on charges that could have been [but were not] established by the evidence.

Authority:

PEN 1172.6(d)(3)

People v. Arellano (2024) 16 Cal.5th 457, 470

Seventh Holding:

The trial court erred by imposing an upper term for the count of assault with a semiautomatic firearm on [victim 2] without holding a jury trial as requested.

Under section 1170(b), when a statute specifies three possible terms, the trial court shall, in its sound discretion, order imposition of a sentence not to exceed the middle term, unless circumstances in aggravation that justify an upper term sentence have been stipulated to by the defendant or have been found true beyond a reasonable doubt at a trial by the jury or by the judge in a court trial.

However, a trial court may consider the defendant’s prior convictions in determining sentencing based on a certified record of conviction without submitting the prior convictions to a jury.

Authority:

PEN 1170(b)

Eighth Holding:

After the defendant’s resentencing, the California Supreme Court decided Wiley. Relying on Erlinger, our high court held that the Sixth Amendment requires a jury determination on aggravating factors related to a defendant’s criminal history, such as whether a defendant’s convictions were of increasing seriousness under rule 4.421(b)(2), and whether the defendant’s prior performance on probation was unsatisfactory under rule 4.421(b)(5).

Wiley concluded that a defendant is entitled to a jury trial on all aggravating facts, other than the bare fact of a prior conviction and its elements, that expose the defendant to imposition of a sentence more serious than the statutorily provided midterm. 

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1082, 1086

Erlinger v. United States (2024) 602 U.S. 821, 834 [virtually any fact that increases the prescribed range of penalties to which a criminal defendant is exposed must be resolved by a unanimous jury beyond a reasonable doubt (or freely admitted in a guilty plea]

Ninth Holding:

where a defendant was deprived of a jury trial on aggravating factors used at sentencing, we must apply the harmless beyond a reasonable doubt standard in Chapman.

Under this standard, we must reverse the judgment unless we conclude beyond a reasonable doubt that a jury, applying that same standard, would have found true all of the aggravating facts upon which the court relied to conclude the upper term was justified, or that those facts were otherwise proved true in compliance with the current statute.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1082, 1087

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

Tenth Holding:

The trial court relied on the defendant’s rap sheet to determine that the crimes were of increasing seriousness and were numerous under rule 4.421(b)(2). According to defendant’s rap sheet, he had a juvenile adjudication in 2007 [for specified offenses], 2010 juvenile adjudications for [different offenses] and a 2014 conviction for [a different offense].  

Based on these series of offenses, a rational jury could have disagreed as to whether it demonstrated criminal conduct of increasing seriousness. Likewise, a rational jury could have also found that the defendant’s prior convictions were not particularly numerous. The failure to submit these aggravating factors to the jury was not harmless beyond a reasonable doubt, and the defendant is entitled to reversal of the upper term sentence.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1082, 1089

People v. Wright (2025) 113 Cal.App.5th 832, 848

 

Discretion, Standard of review, Sufficiency of and substantial evidence

Case 000825

Posted on by Gary McCurdy

Error and/or relief

We conclude the finding of unreasonable risk to public safety is not supported by substantial evidence and the trial court abused its discretion in finding the defendant unsuitable for diversion.

(Gary note: I have set out the various holdings and authorities below that represent the applicable law and principles, but I have not recited the court’s analysis of the facts in this case on which it based there was no substantial evidence to support the court’s conclusion that the defendant was a danger to the community. Suffice it to say, the appellate court found the court’s reasoning inadequate to support denial of the request for mental health diversion.)

First Holding:

Section 1001.36 authorizes courts to grant pretrial mental health diversion to defendants who meet six qualifying requirements. The stated purpose of the diversion statute is to promote all of the following: (a) Increased diversion of individuals with mental disorders to mitigate the individuals’ entry and reentry into the criminal justice system while protecting public safety. (b) Allowing local discretion and flexibility for counties in the development and implementation of diversion for individuals with mental disorders across a continuum of care settings. (c) Providing diversion that meets the unique mental health treatment and support needs of individuals with mental disorders.

If the defendant successfully completes diversion, including having in place a plan for long-term mental health care, the criminal charges shall be dismissed. However, if after diversion is granted, a qualified mental health expert concludes the defendant is performing unsatisfactorily in the assigned program, the court shall, after notice to the defendant, hold a hearing to determine whether criminal proceedings should be reinstated or treatment modified.

Authority:

PEN 1001.36

PEN 1001.35

People v. Williams (2021) 63 Cal.App.5th 990, 995

People v. Frahs (2020) 9 Cal.5th 618, 626

People v. Whitmill (2022) 86 Cal.App.5th 1138, 1149–1150

Second Holding:

Effective January 1, 2023, mental health diversion requires the trial court to find that the defendant is both eligible for diversion and suitable for the program. A defendant is eligible if they meet two criteria: first, the defendant must have been diagnosed with a mental disorder as identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders, within the last five years, by a qualified mental health expert.

Second, the disorder must be a significant factor in the commission of the charged offense. The 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:

PEN 1001.36(b)

Third Holding:

This presumption cannot be overcome by the mere absence of evidence demonstrating the defendant’s mental illness was a factor in the alleged offenses. If a mere absence of evidence were sufficient, the court would effectively be impermissibly shifting the burden to the defendant to affirmatively prove that his mental disorder contributed to the offenses.

Authority:

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

Gomez v. Superior Court (2025) 113 Cal.App.5th 671, 688–689

Fourth Holding:

If the defendant satisfies the statutory eligibility requirements, the court must then consider whether the defendant is suitable for pretrial diversion. The four criteria to assess suitability are grouped in section 1001.36, subdivision (c). As with the diagnosis eligibility requirement, the first of these relies on input from a medical professional, in this instance the opinion of a qualified mental health expert, that the symptoms of defendant’s mental disorder would respond to mental health treatment.

The second and third requirements are satisfied if the defendant agrees to waive their speedy trial rights and to comply with treatment as a condition of diversion. Only the fourth requirement necessitates a trial court finding, to wit, that the defendant will not pose an unreasonable risk of danger to public safety if treated in the community.

Authority:

PEN 1001.36(c)

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 892–894

Fifth Holding:

Even here, however, the Legislature has narrowly defined the applicable criteria. Borrowing from sections 1170.18(c) and 667(e)(2)(C)(iv), an unreasonable risk to public safety means a likelihood that the defendant will commit one of the violent felonies specifically enumerated in the statute.

The listed felonies are colloquially known as “super strikes.” Super strikes are a narrowly drawn subset of violent felonies involving extreme violence. We note that the lack of a criminal record is strong evidence that a defendant is unlikely to commit a future super strike offense.

Authority:

PEN 1001.36(c)(4)

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 892

People v. Williams (2021) 63 Cal.App.5th 990, 1001

People v. Moine (2011) 62 Cal.App.5th 440, 450

People v. Hoffman (2015) 241 Cal.App.4th 1304, 1310

Sixth Holding:

Assuming the defendant is both eligible and suitable, the trial court must also be satisfied that the recommended inpatient or outpatient program of mental health treatment will meet the specialized mental health treatment needs of the defendant. This is not an additional eligibility or suitability requirement the defendant must meet. Rather, section 1001.36(f)(1) read as a whole appears to contemplate an ongoing assessment to assure that defendant will receive appropriate treatment for their particular conditions as part of the diversion program.

Authority:

PEN 1001.36(f)(1)(A)(i)

People v. Gerson (2022) 80 Cal.App.5th 1067, 1079

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 892

Seventh Holding:

Finally, even if a defendant has made a prima facie showing that all the express statutory eligibility and suitability requirements are met, the court may still exercise its discretion to deny diversion. But this residual discretion is not unfettered; it must be exercised consistent with the principles and purpose of the governing law. Where the court chooses to exercise that residual discretion to deny diversion, its statement of reasons should reflect consideration of the underlying purposes of the statute and explain why diversion would not meet these goals.

Authority:

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

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 892

Eighth Holding:

We review the trial court’s factual findings as to the enumerated statutory criteria for substantial evidence. Under this deferential standard of review, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends.

Authority:

People v. Gerson (2022) 80 Cal.App.5th 1067, 1079

Ninth Holding:

We review the trial court’s ultimate decision whether to grant mental health diversion for an abuse of discretion. By its terms, section 1001.36 is designed to encourage trial courts to broadly authorize pretrial mental health diversion, providing treatment for qualifying mental disorders that result in criminal behavior. As with any principled exercise of discretion, the court must utilize the appropriate criteria consistent with the principles and purposes of the governing law, only drawing conclusions supported by substantial evidence.

Authority:

People v. Gerson (2022) 80 Cal.App.5th 1067, 1080