Category Archives: Duty of the court

Discretion, Duty of the court, Sentencing

Case 001139

Posted on by Gary McCurdy

Error and/or relief

The trial court abused its discretion by denying mental health diversion because the court’s finding that his proposed treatment plan would not address his mental health needs was not supported by the record. The trial court abused its discretion by denying developmentally disabled diversion because the defendant did not produce suitable treatment program.

First Holding:

The Legislature enacted sections 1001.35 and 1001.36 to create a pretrial diversion program for criminal defendants with diagnosed mental health disorders. The statute expressly promotes increased diversion of individuals with mental disorders to mitigate the individuals’ entry and reentry into the criminal justice system while protecting public safety. Section 1001.36 requires the trial court to find the defendant both eligible for diversion and suitable for the program. Section 1001.36(b) and (c) set forth the criteria for each.

Authority:

PEN 1001.35

PEN 1001.36

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 890-891, 887 (section 1001.36 was designed to encourage trial courts to broadly authorize pretrial mental health diversion, providing treatment for qualifying mental disorders that result in criminal behavior)

Vaughn v. Superior Court (2024) 105 Cal.App.5th 124, 133

Second Holding:

If 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 defendants will receive appropriate treatment for their particular conditions as part of the diversion program. Under this provision, a court might reject diversion if it concluded that the proposed treatment services did not target or could not effectively address the defendant’s particular diagnosis. For instance, the court might be legitimately concerned if the evaluation of the defendant suggested the need for psychiatric medication and the recommended program did not provide psychiatric services.

Authority:

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

Vaughn v. Superior Court (2024) 105 Cal.App.5th 124, 134

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 892, 895, fn. 9

Third Holding:

Even where a defendant makes a prima facie showing that the defendant meets all the eligibility and suitability requirements, the trial court may still exercise its discretion to deny diversion. But this residual discretion is not unfettered and must be exercised consistent with the principles and purpose of the governing law.

That purpose 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. 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:

PEN 1001.36(a)

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

Vaughn v. Superior Court (2024) 105 Cal.App.5th 124, 135

Fourth Holding:

A trial court’s ruling on a request for mental health diversion is reviewed 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. Further, action that transgresses the confines of the applicable principles of law is outside the scope of discretion and constitutes an abuse of discretion.

The trial court found the defendant made a prima facie showing that he was eligible and suitable for mental health diversion but denied diversion because it found the defendant’s proposed treatment program would not meet his mental health needs. We conclude substantial evidence does not support the court’s finding. (Gary note: The opinion then discusses facts specific to this defendant and the evidence produced, and concluded the evidence was insufficient to support the trial court’s conclusion that there was no suitable treatment plan.)

Under the circumstances, we will conditionally reverse the judgment and remand the matter for the court to reconsider the motion, bearing in mind the statutory principles and purpose of the mental health diversion statute.

Authority:

People v. Whitmill (2022) 86 Cal.App.5th 1138, 1147

People v. Graham (2024) 102 Cal.App.5th 787, 795

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

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

Fifth Holding:

In this instance, the defendant also was denied diversion under section 1001.20 et seq. for developmentally disabled persons. When the court suspects that a defendant may have a developmental disability, the trial court shall order the prosecutor, the probation department, and the regional center to prepare reports on specified aspects of the defendant’s case. The trial court has a sua sponte duty to consult with the relevant agencies to determine whether a defendant may be diverted.

As with a denial of a request for mental health diversion, we review a trial court’s denial of developmental disability diversion for abuse of discretion.

Authority:

Authority:
PEN 1001.20

People v. K.D. (2025) 110 Cal.App.5th 1, 16, 18-19 [abuse of discretion arises if the trial court based its decision on impermissible factors or on an incorrect legal standard]

Sixth Holding:

Unlike other diversion statutes, section 1001.23(b) does not include a stand-alone requirement that the defendant prove that his or her developmental disability was a significant factor in the commission of the charged crime.

Authority:

People v. K.D. (2025) 110 Cal.App.5th 1, 24

Seventh Holding:

There is no dispute that the defendant has a developmental disability and is eligible for regional center services. The trial court denied developmental disability diversion because it was not satisfied that the defendant presented a suitable program to meet his needs.

Under section 1001.20 et seq., however, the defendant was not required to provide a proposed plan or one that would meet his needs.

Remand is required so that the court can exercise informed discretion with the information required by statute, keeping in mind the ultimate question of whether, in light of the statutorily-prescribed considerations, defendant is a person who would benefit by diversion.

Authority:

People v. K.D. (2025) 110 Cal.App.5th 1, 31-32, 28 [trial court erroneously denied motion for developmental disability diversion under the misguided view that defendant was obligated to provide a treatment plan]

Abstracts and Minutes, Duty of the court, Eighth Amendment, Equal protection, Fines and fees, Gary Musings, Sentencing

Case 001128

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment must be corrected to reflect the credit for time served. Although the court acknowledged that section 654 applied, it erroneously imposed concurrent sentences rather than staying any. The minute order mentions only that the two counts were stayed, and does not reflect the order for concurrent sentences. The abstract of judgment indicates that the counts were both stayed and to be served concurrently. Remanded for correction of these errors.

First Holding:

Where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls.

Authority:

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

People v. Mullins (2018) 19 Cal.App.5th 594, 612

Second Holding:

Sentences must be stayed to the extent that section 654 prohibits multiple punishment.

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. Section 654 bars multiple punishment for offenses arising out of a single occurrence where all the offenses were incident to one objective.

Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.

In such circumstances, the court must impose but stay execution of sentence on all of the convictions arising out of the course of conduct except for one. It has long been established that the imposition of concurrent sentences is precluded by section 654 because the defendant is deemed to be subjected to the term of both sentences although they are served simultaneously.

(Gary Musing, 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, returning to the court the discretion to choose on which count punishment should be imposed and executed.

(There is likely language in one or more of the cases cited below that were decided during the time frame requiring imposition of sentence on the count carrying the longest term. Don’t be misled by that, as the law has changed, restoring the court’s discretion to choose among the counts.)

Authority:

PEN 654

People v. Jones (2012) 54 Cal.4th 350, 353

People v. Deloza (1998) 18 Cal.4th 585, 591

People v. Latimer (1993) 5 Cal.4th 1203, 1208

People v. McCoy (2012) 208 Cal.App.4th 1333, 1338

People v. Miller (1977) 18 Cal.3d 873, 887, abrogated on other grounds as stated in People v. Oates (2004) 32 Cal.4th 1048, 1067, fn. 8;

People v. Dowdell (2014) 227 Cal.App.4th 1388, 1413

Third Holding:

A sentencing court must award credits for all days in custody up to and including the day of sentencing. This includes partial days. Because an abstract of judgment represents the process and authority for carrying the judgment and sentence into effect, it is paramount that the abstract reflects the appropriate sentence and credits.

Authority:

PEN 2900.5

People v. Bravo (1990) 219 Cal.App.3d 729, 735

People v. King (1992) 3 Cal.App.4th 882, 886

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

Fourth Holding:

At sentencing, the court imposed a $300 restitution fine, pursuant to section 1202.4(b), which it stayed. It also imposed and suspended a parole revocation restitution fine under section 1202.45. The abstract of judgment, however, erroneously lists the fines as $900. It also fails to state the restitution fine is stayed. We therefore order the errors in the amount of the restitution fines be corrected.

Authority:

People v. Lipscomb (2022) 87 Cal.App.5th 9, 22 [a court may only impose one restitution fine per case, so it is error to impose a restitution fine as to each count]

Fifth Holding:

The court also imposed ancillary assessments. We remand to give the defendant an opportunity to demonstrate whether he has the ability to pay, under equal protection principles, inasmuch as the court has the authority to waive such fees entirely in civil matters.

Authority:

People v. Kopp (2025) 19 Cal.5th 1, 9, 30

Sixth Holding:

Due process does not require an ability to pay hearing before imposing every punitive fine. Instead, the excessive fines analysis, which considers ability to pay, is the proper vehicle to challenge punitive fines. Four factors are relevant to determining whether a fine is unconstitutionally excessive: (1) the defendant’s culpability; (2) the relationship between the harm and the penalty; (3) the penalties imposed in similar statutes; and (4) the defendant’s ability to pay.

Authority:

U.S. Const., Eighth Amendment

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

People v. Kopp (2025) 19 Cal.5th 1, 11 & fn. 6, 23

United States v. Bajakajian (1998) 524 U.S. 321, 327–328

People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2005) 37 Cal.4th 707, 728

Duty of the court, Gary Musings, Sentencing

Case 001127

Posted on by Gary McCurdy

Error and/or relief

Whether or not the court had the right to issue a protective order during the proceedings prior to entry of judgment, the court failed to terminate the protective order following the judgment. Remanded for that purpose.

First Holding:

The trial court issued a pretrial criminal protective order on behalf of the victim after the defendant entered his plea. The trial court did not make any findings on the record but ordered no contact with the victim and a 100-yard stay away order There were no objections from counsel. According to the criminal protect order, the orders remain in effect until further court order.

The court had no authority to issue a protective order under section 136.2(a) after sentencing, and it did not issue one. But the order that it made after the guilty plea stated it was to remain in effect until further order of the court, which the court never made. We therefore remand to the trial court to issue a proper notice of termination of protective order so that proper authorities will know that the order has expired.

Authority:

People v. Lopez (2022) 75 Cal.App.5th 227, 236

Second Holding:

Section 136.2 is limited to the pendency of a criminal action because section 136.2 is aimed at protecting only victims or witnesses.

Authority:

PEN 136.2(a)

People v. Selga (2008) 162 Cal.App.4th 113, 118

People v. Stone (2004) 123 Cal.App.4th 153, 159 superseded in statute as stated in Babalola v. Superior Court (2011) 192 Cal.App.4th 948, 960, related to the issuance of restraining orders in domestic violence cases

(Gary Musings:

(This case had an interesting twist. The attorney filed a brief under People v. Wende (1979) 25 Cal.3d 436. A Wende brief is filed when appointed counsel determines that there are no arguable issues to raise in the appeal. After setting forth the statements of the case and facts sufficient to guide the Court of Appeal, the brief asks the appellate court to independently review the entire record to determine whether there are issues that counsel should brief. The defendant is given an opportunity to submit a supplemental brief in which the defendant argues whatever the defendant believes to be an issue.

(The Wende brief process is available only in appointed appeals, and applies only to the first appeal of right–essentially to the direct appeal from the conviction initiated within the timeframe for the filing of a notice of appeal following entry of judgment. Wende was California’s ultimate answer to the U.S. Supreme Court’s decision in Anders v. California (1967) 386 U.S. 738. In essence, I assume there was concern that appointed counsel may have less incentive to go the whole mile for the client.

(Keep in mind we’re talking about conditions more than 60 years ago, around the time Gideon v. Wainwright (1963) 372 U.S. 335 extended the Sixth Amendment right to counsel to the states under the Fourteenth Amendment. While I am certain that there were many attorneys who diligently sacrificed many hours for their indigent client, I also assume that there must have been concern that maybe not all attorneys put in as much effort on appointed cases as they would for their wealthy clients. The independent review of the record by the court was designed to protect the indigent defendants from inadequate effort.

(There’s probably much more to it than I stated, and perhaps I even have missed the mark on why Anders came about. But regardless of what was written, I suspect there was some wink wink nod nod behind the scenes recognizing that some cases demonstrated a tad bit of underrepresentation. Maybe I’m wrong. It doesn’t change the quirk in this case, however.

(By the way, the same concern–whatever it might have been–does not arise with retained counsel. Presumably retained attorneys have a financial incentive to do as much as they possibly can for their clients.

(All that is background–accurate or not–for the twist in this case. The defendant’s supplemental brief essentially was a challenge to his guilty plea. Thus, a certificate of probable cause would normally be required, under section 1237.5 and Rules of Court, rule 8.304(b). Had appointed counsel attempted to raise the arguments the defendant raised on his own, the court would not have been permitted to address the issues, because there is no latitude when an issue requires a certificate of probable cause and one has not been issued.

(But in this case, the court concluded that Wende requires it to conduct a full review of the record and to address with reasons all of the issues presented by the defendant in a supplemental brief. Specifically, in People v. Kelly (2006) 40 Cal.4th 106, the Supreme Court imposed a judicial principle that when an indigent defendant submits a supplemental brief following counsel’s filing of a Wende brief, the appellate court must address all of the issues raised and state reasons for its conclusions on their merits.

(In this case, the Court of Appeal concluded that the lack of a certificate of probable cause was not a bar to its review of the issues raised by the defendant himself in a supplemental brief, in compliance with Wende and Kelly.

(Keep in mind that this is NOT a published opinion, and thus cannot be cited to compel an appellate court to ignore the absence of a certificate of probable cause when reviewing a defendant’s post-Wende supplemental brief. But Wende and Kelly were published opinions, and there’s no reason that I am aware of that counsel could not urge the court to grant a petition for rehearing if the court declined to address the defendant’s supplemental brief issues because of a lack of a certificate of probable cause.)

Authority (the middle two only in Gary Musings):

People v. Wende (1979) 25 Cal.3d 436

Gideon v. Wainwright (1963) 372 U.S. 335

Anders v. California (1967) 386 U.S. 738

People v. Kelly (2006) 40 Cal.4th 106

Discretion, Duty of the court, Standard of review, Sufficiency of and substantial evidence

Case 001123

Posted on by Gary McCurdy

Error and/or relief

The court erred in denying the defendant’s request for mental health diversion after considering only one of the two available medical reports before determining that the defendant presented an unreasonable risk of danger to public safety within the meaning of section 1170.18.

(Gary note: as I explain below in a note to the Third Holding, that standard is slated to change 1/1/27.)

First Holding:

Section 1001.36 gives trial courts discretion to grant pretrial diversion for defendants with qualifying mental health disorders. The court may postpone prosecution to allow the defendant to receive mental health treatment. The Legislature intended the mental health diversion program to apply as broadly as possible.

Authority:

PEN 1001.36

People v. Frahs (2020) 9 Cal.5th 618, 626, 632

People v. Tourville (2026) 120 Cal.App.5th 439, 451

Vaughn v. Superior Court (2024) 105 Cal.App.5th 124, 133

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

Second Holding:

Defendants requesting mental health diversion have the burden to make a prima facie showing that they will meet the minimum requirements of eligibility for diversion and that they and the offense are suitable for diversion.

A defendant is eligible under section 1001.36(b) if:

(1) a qualified mental health expert has diagnosed the defendant within the last five years with a mental disorder identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders (with limited exceptions); and

(2) the defendant’s mental disorder was a significant factor in the charged offense.

Authority:

PEN 1001.36(b)

Vaughn v. Superior Court (2024) 105 Cal.App.5th 124, 133

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

Third Holding:

A defendant is suitable for diversion under section 1001.36(c) if the defendant satisfies four requirements:

(1) a qualified mental health expert concludes 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; 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.

(Gary note: Effective 1/1/2027, the language in 1001.36(c)(4) regarding an unreasonable risk of danger to public safety (as defined in section 1170.18) changed to something much less favorable for seekers of diversion. AB 46 (enacted as Chapter 18) and AB 2273 (enacted as Chapter 298) amended section 1001.36 by changing and renumbering the “public safety” subdivision language to 1001.36(c)(D). Instead of incorporating the “superstrike” language of Penal Code section 1170.18, the language effective 1/1/27 will read “The defendant will not pose a substantial and undue risk to the physical safety of another person, if treated in the community. …”)

Authority:

PEN 1001.36(c)

People v. Tourville (2026) 120 Cal.App.5th 439, 458

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 891-892

Fourth Holding:

Even if the defendant makes a prima facie showing he or she meets the statutory requirements, the trial court has residual discretion to deny diversion. The court must exercise its residual discretion consistent with the principles and purpose of the mental health diversion statutes.

Authority:

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

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

Vaughn v. Superior Court (2024) 105 Cal.App.5th 124, 135

Fifth Holding:

We review the trial court’s order granting or denying a request for mental health diversion for abuse of discretion. The 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.

Authority:

Vaughn v. Superior Court (2024) 105 Cal.App.5th 135

People v. Whitmill (2022) 86 Cal.App.5th 1138, 1147

(Gary note: The appellate court described confusion in the record as to whether the trial court had the second mental health report available or read it. The trial court denied the request for diversion on finding that the defendant posed an unreasonable danger to public safety as defined in section 1170.18. The appellate court remanded for the trial court to review that second report before making a determination on whether the defendant poses a reasonable risk of committing a so-called superstrike.

(As I noted above, however, that bar is lowered as of 1/1/27. Of course, the trial court should still consider the second report. The question I have and do not know the answer to is whether the defendant is entitled to the heightened standard as it existed at the time he made his request for diversion and as it stands as of the writing of this summary, or whether any delay in the new proceedings past 2026 will subject him to evaluation as a risk under the new lower bar. Was that a question? Hmmm. You get my drift, though, right?)

Duty of the court, Jurisdiction, Pleading, Sentencing

Case 001120

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in denying the defendant’s motion for a Franklin hearing.

First Holding:

Franklin held that youth offenders must have an opportunity to put on the record information relevant to any eventual Penal Code section 3051 youth offender parole hearing.

Authority:

People v. Franklin (2016) 63 Cal.4th 261

In re Cook (2019) 7 Cal.5th 439

Second Holding:

The defendant committed his crime several decades earlier, when he was 21. After the defendant was sentenced, section 3051 became effective in 2014. Section 3051(b) requires the Board of Parole Hearings to conduct a youth offender parole hearing during the 15th, 20th, or 25th year of a youth offender’s incarceration.

The date of the hearing depends on the youth offender’s controlling offense, defined as the offense or enhancement for which any sentencing court imposed the longest term of imprisonment. The section applies to offenders like the defendant who committed their controlling offense when they were 25 years old or younger.

Authority:

PEN 3051

People v. Franklin (2016) 63 Cal.4th 261, 277

Third Holding:

After section 3051’s passage, Franklin held that the section contemplated that information regarding the juvenile offender’s characteristics and circumstances at the time of the offense will be available at a youth offender parole hearing to facilitate consideration by the board. Under section 3051(f)(2), persons with information about youth offender may submit statements for review by board. Assembling such mitigating information will typically be more easily done at or near the time of the juvenile’s offense.

Authority:

PEN 3051(f)(2)

People v. Franklin (2016) 63 Cal.4th 261, 283

Fourth Holding:

Cook held that youth offenders whose convictions are final may move in the trial court for a Franklin hearing under section 1203.01. Section 1203.01 provides that postjudgment, a trial court may generate, collect, and transmit information about the defendant and the crime to the Department of Corrections and Rehabilitation.

Authority:

In re Cook (2019) 7 Cal.5th 439

Fifth Holding:

The trial court erred in concluding it did not have jurisdiction to act because the filing of a notice of appeal on an earlier motion for discovery deprived the trial court of jurisdiction to proceed.

Generally, the filing of a valid notice of appeal vests jurisdiction of the cause in the appellate court until it determines the appeal and issues the remittitur, thereby divesting the trial court of jurisdiction over anything affecting the judgment.

However, appellate jurisdiction does not divest the trial court of all power to act. Perfection of an appeal stays proceedings in the trial court only of matters embraced in the matter being appealed. The trial court otherwise may act on any matter embraced in the action and not affected by the judgment or order on appeal.

Authority:

CCP 916

People v. Flores (2003) 30 Cal.4th 1059, 1064

Townsel v. Superior Court (1999) 20 Cal.4th 1084, 1089

Sixth Holding:

The Franklin motion was unaffected by and unrelated to the order on appeal. That is, the appeal pending when the defendant filed his Franklin motion concerned a motion for postconviction discovery. In contrast, proceedings under Franklin constitute a remedy of evidence preservation.

Also, Franklin proceedings are unrelated to the validity of the defendant’s sentence. Neither the entitlement to a youth offender parole hearing, nor the evidence preservation process disturbs the finality of state convictions. Thus, the Franklin hearing the defendant requested was not embraced in the order on appeal and therefore the trial court had jurisdiction to hear his motion.

Authority:

In re Cook (2019) 7 Cal.5th 439, 446-447, 451

People v. Lizarraga (2020) 56 Cal.App.5th 201, 207 [Franklin hearing does not expose a defendant to increase or decrease in sentence]

Seventh Holding:

The court erred in denying the motion as not being in compliance with Cook. The defendant’s motion was sufficient to initiate Franklin proceedings. The requirements for a Franklin motion are minimal, and the motion need not describe in detail the evidence the youth offender seeks to preserve. Instead, where a motion includes relevant criminal case information and legal authority and establishes eligibility for a youth offender parole hearing, the motion should be granted.

Here, the defendant’s motion cited section 1203.01 and 3051 and Cook in his motion. He stated his qualifying age, the original case number. He identified the controlling offense of murder, requested counsel, said he had never had a Frankling hearing, and asked for an opportunity to make a record of his characteristics as a youth offender. Based on this information, the trial court should have granted the defendant’s motion to initiate Franklin proceedings.

We express no opinion on whether the trial court must hold a formal Franklin hearing.

Authority:

People v. Howard (2021) 74 Cal.App.5th 141, 150, 152 [legally sufficient Franklin motion only requires defendant be given opportunity to place additional evidence in record]

People v. Lipptrapp (2021) 59 Cal.App.5th 886, 893–894 [trial court erred by denying Franklin motion that identified original case, relevant law, defendant’s age, sentence, and relief requested]

In re Cook (2019) 7 Cal.5th 439, 446-447, 459 [court has discretion to determine how to conduct process efficiently]