Category Archives: Sentencing

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, Sentencing

Case 001138

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment lists the amount of the criminal conviction fee and the court operations fee as $600 and $800, respectively, whereas the court ordered $90 and $120, respectively. The abstract must be corrected.

Holding:

In a criminal case, it is the oral pronouncement of sentence that constitutes the judgment. Where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls. Where, as here, the Attorney General or defendant identifies an evident discrepancy between the abstract of judgment and the judgment that the reporter’s transcript reflect, the appellate court itself should order the trial court to correct the abstract of judgment.

Authority:

People v. Scott (2012) 203 Cal.App.4th 1303, 1324

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

People v. Mitchell (2001) 26 Cal.4th 181, 188

Sentencing

Case 001137

Posted on by Gary McCurdy

Error and/or relief

When section 654 applies, the term for the stayed sentence must be full term, not one-third the middle term. Remanded for the court to impose the full term on the stayed count.

Holding:

Under section 654, the trial court imposed and stayed eight months one of the counts, calculated as one-third the middle term of two years. The term imposed and stayed under section 654 must be a full term. This error resulted in an unauthorized sentence.

Authority:

People v. Cantrell (2009) 175 Cal.App.4th 1161, 1164

People v. Relkin (2016) 6 Cal.App.5th 1188, 1197–1198

Abstracts and Minutes, Sentencing

Case 001136

Posted on by Gary McCurdy

Error and/or relief

The clerk incorrectly listed the indeterminate sentence information and the determinate sentence information on a single abstract of judgment that was designed for indeterminate sentences. The clerk is directed to prepare an abstract of judgment for the indeterminate sentence on the correct form for indeterminate sentences and a separate abstract of judgment on the correct for for determinate sentences.

Holding:

The trial court incorrectly recorded both the determinate and indeterminate portions of appellant’s sentence in a single abstract of judgment. The trial court is directed to prepare amended abstracts of judgment that record the determinate sentences on Judicial Council form CR-290 and the indeterminate sentences on Judicial Council form CR-292. The trial court shall then forward the amended abstracts of judgment to the appropriate entities.

Authority:

Judicial Council form CR-292 (for indeterminate sentences)

Judicial Council form CR-290 (for determinate sentences

Amelioration, Gary Musings, Sentencing

Case 001135

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in concluding that the defendant was ineligible for resentencing under section 1172.75 because the original trial court struck the punishment for his now-invalid prior prison term enhancement.

Holding:

As of January 1, 2020, SB 136 amended section 667.5(b) to eliminate sentence enhancements for prior prison terms unless the enhancements related to prior terms for sexually violent offenses. The purpose of the statute is to reduce the societal and fiscal burdens of incarceration by eliminating prior-prison-term enhancements for all prior crimes except for sexually violent offenses. Section 1172.75(a), which was added to implement SB 136, states that any sentence enhancement that was imposed prior to January 1, 2020, pursuant to section 667.5(b) is legally invalid.

Under Rhodius and Espino, section 1172.75 applies whenever an enhancement under section 667.5(b) was imposed prior to January 1, 2020, even if the court stayed or struck the punishment for it.

Authority:

PEN 667.5(b)

People v. Coddington (2023) 96 Cal.App.5th 562, 567

People v. Rhodius (2025) 17 Cal.5th 1050, 1054

People v. Espino (2026) 20 Cal.5th 57

Gary Musings:

The above language “by eliminating prior-prison-term enhancements for all prior crimes except for sexually violent offenses” is a bit looser maybe than it should be. Subdivision (b) was indeed amended, and the subdivision (b) now applies only if the offense was a sexually violent offense as defined in Welfare and Institutions Code section 6600(b).

Keep your eyes on the prize here, though. SB 136 did not eliminate prior-prison-term enhancements for “all prior crimes except for sexually violent offenses” as stated in the opinion. It eliminated only those specified in subdivision (b), except for the specified sexually violent offenses.

But SB 136 did NOT eliminate the three-year enhancement specified in section 667.5(a) for any qualifying prior prison terms served for the violent felonies listed in subdivision (c), which itemizes at least 24 crimes and circumstances that give rise to the status as “violent felony.”

I have seen that “by eliminating prior-prison-term enhancements for all prior crimes except for sexually violent offenses” language in other unpublished opinions, and it is a direct quotation from Rhodius itself, at p. 1054. I understand the context because section 1172.75 pertains only to enhancements under subdivision (b).

But I fear that maybe an attorney new to the field might read too much into that phrase. Hence, this Gary Musings to help keep such quick readers from straying. Though Rhodius does use the phrase “all prior crimes” in its fourth paragraph, it more specifically describes the effect of SB 136 in its first paragraph, where it says, “Effective January 1, 2020, the Legislature eliminated these one-year prior-prison-term enhancements except in cases involving prior terms for sexually violent offenses.” (I.e., referring only to the 667.5(b) enhancements.)

The Legislative Counsel’s Digest characterizes the amendment as follows:

“Existing law imposes an additional 3-year sentence for each prior separate prison term served by a defendant where the prior and current offense was a violent felony, as defined. For other felonies, existing law imposes an additional one-year term for each prior separate prison term or county jail felony term, except under specified circumstances.

“This bill would instead impose that additional one-year term served for each prior separate prison term served for a conviction of a sexually violent offense, as defined.”

By using the language  “that additional one-year term served …” in the second paragraph, the Leg Counsel’s digest makes it clear that only the subdivision (b) category has been affected.  It says nothing about the three-year term imposed under section 667.5(a) for violent felonies as defined in subdivision (c). 

The phrase regarding eliminating prior-prison-term enhancements for “all prior crimes except for sexually violent offenses” appears nowhere in SB 136.

So with eyes wide open, recognize that enhancements for prior prison terms for violent felonies described in section 667.5(c) are alive and well.