Category Archives: Sentencing

Amelioration, Plea bargains, Sentencing

Case 000919

Posted on by Gary McCurdy

Error and/or relief

The defendant is entitled to consideration for resentencing under section 1172.75 even though she stipulated to the upper term in her original plea agreement. The matter is remanded.

Under Mitchell, the defendant is free to raise the issue of whether section 1171 precludes the setting aside of her plea if the court modifies the sentence to something less than the stipulated sentence.

First Holding:

The defendant is entitled to the retroactive benefit of section 1170(b)’s provisions notwithstanding her agreement to a specified term as part of a plea bargain.

Authority:

People v. Mitchell (2026) 19 Cal.5th 729

Second Holding:

The proper remedy is to remand this case and permit the defendant to pursue relief under the new benefit that SB 567 confers. On remand, the defendant may either waive or invoke the requirements of section 1170(b). If she reaffirms her acceptance of the plea bargain and enters a new waiver of section 1170(b)’s requirements, the court shall reinstate the original sentence as negotiated by the parties.

If she declines to enter that waiver, in lieu of further proceedings the parties may agree to modify the existing plea agreement to specify a midterm sentence. If the court also accepts the modification it shall sentence the defendant accordingly. If no such agreement is reached and approved, the defendant’s remedy is to withdraw her assent to the bargain. In that case the court shall set aside the plea, the matter shall proceed as to the defendant as if no plea had been entered, and the case shall be set for trial.

In keeping with footnote 9 of Mitchell, however, on our remand to the trial court, the defendant may present her argument that section 1171, enacted effective 1/1/25, provides that any modification of her sentence under ameliorative provisions shall not result in setting aside her plea.

Authority:

People v. Mitchell (2026) 19 Cal.5th 729

Eighth Amendment, Fines and fees, Sentencing, Statutory interpretation

Case 000917

Posted on by Gary McCurdy

Error and/or relief

We are not convinced that section 1202.4 is facially unconstitutional, but we will remand this matter to the trial court to give the defendant an opportunity to bring an as-applied challenge to the restitution fine under the excessive fines clauses of the Eighth Amendment and California Constitution.

First Holding:

Section 1202.4(b) requires that in every case where a person is convicted of a crime, the court shall impose a separate and additional restitution fine, unless it finds compelling and extraordinary reasons for not doing so and states those reasons on the record. For a felony, the minimum fine is $300 and the maximum is $10,000. Fines for a misdemeanor range from $150 to $1000.

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 pursuant to paragraph (1) of subdivision (b).

Authority:

PEN 1202.4(b)

Second Holding:

Due process did not require an ability to pay hearing before imposing every punitive fine. Kopp instructed instead that the excessive fines analysis, which considers ability to pay, is the proper vehicle to challenge punitive fines. The excessive fines analysis arises under the Eighth Amendment to the United States Constitution and article I, section 17 of the California Constitution.

Authority:

U.S. Const. Eighth Amendment

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

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

Third Holding:

Following Bajakajian, our Supreme Court in Lockyer stated that 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.

Kopp observed that a fine is excessive only if it is grossly disproportional to the gravity of the offense that it punishes, a deferential standard that recognizes that the Legislature makes judgments in the first instance about the appropriate punishment for offenses and judicial determinations of the gravity of a particular criminal offense are inherently imprecise.

Kopp remanded to give the defendant the opportunity to raise such a challenge.

Authority:

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

People v. Kopp (2025) 19 Cal.5th 1, 23-24

Fourth Holding:

A statute will be interpreted to avoid serious constitutional questions if such an interpretation is fairly possible. It would be remarkable and plainly unconstitutional for the Legislature to prohibit a trial court from considering a defendant’s invocation of a constitutional right.

We will therefore not construe section 1202.4 as preventing defendants from raising an excessive fines challenge to the minimum fine. Instead, we read the statute as simply establishing that as a statutory matter in the absence of an excessive fines challenge, a trial court cannot refrain from imposing the minimum $300 restitution fine based on a defendant’s inability to pay alone.

This is congruent with Kopp and excessive fines analysis jurisprudence, which considers a defendant’s ability to pay as one of four relevant factors, not as dispositive on its own.

Authority:

People v. Buza (2018) 4 Cal.5th 658, 682

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

People v. Aviles (2019) 39 Cal.App.5th 1055, 1070 [While ability to pay may be part of the proportionality analysis, it is not the only factor.]

People v. Kopp (2025) 19 Cal.5th 1, 23 [citing Aviles with approval]

Fifth Holding:

Neither the defendant nor the trial court had the benefit of Kopp when the defendant was sentenced, so she did not present her challenge to the restitution fine through the proper excessive fines analysis that Kopp makes clear is appropriate.

Accordingly, as Kopp itself did, we will remand this matter to the trial court to give the defendant the the opportunity to assert the legal analyses applicable to such a challenge and argue how the particular facts of this case inform such an inquiry.

Authority:

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

Discretion, Sentencing

Case 000915

Posted on by Gary McCurdy

Error and/or relief

The trial court’s finding that he was unsuitable for diversion is unsupported by substantial evidence. We direct the trial court to vacate the order denying the defendant’s motion for mental health diversion and to enter a new order granting the motion unless there is evidence of changed circumstances that provide a basis for denying the motion consistent with this opinion. If the court finds changed circumstances, it shall hold a further hearing on the defendant’s motion for mental health diversion.

First Holding:

Section 1001.36 gives trial courts the discretion to grant pretrial diversion for individuals suffering from certain mental health disorders. The primary purposes of the legislation are to keep people with mental disorders from entering and reentering the criminal justice system while protecting public safety, to give counties discretion in developing and implementing diversion across a continuum of care settings, and to provide mental health rehabilitative services.

Authority:

PEN 1001.36

PEN 1001.35(a)-(c)

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

People v. Doron (2023) 95 Cal.App.5th 1, 7

Second Holding:

Section 1001.36(b) provides that a defendant is eligible for pretrial diversion if two criteria are met.

First, the defendant has been diagnosed with a mental disorder, such as the one with which defendant was diagnosed, within the last five years by a qualified mental health expert.

Second, the defendant’s mental disorder was a significant factor in the commission of the charged offense.

If the defendant has been diagnosed with a mental disorder, 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

Third Holding:

If a defendant meets these eligibility requirements, the defendant is suitable for pretrial diversion if four criteria are satisfied:

(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)

Fourth Holding:

The proper inquiry for determining whether the fourth criterion is satisfied is whether there is an unreasonable risk the defendant will commit a super strike if treated in the community.

Super strikes include sexually violent offenses, child molestation, homicide, attempted homicide, solicitation to commit murder, assault with a machine gun on a peace officer or fire fighter, possession of a weapon of mass destruction, or a violent felony punishable by life imprisonment or death.

Authority:

PEN 1001.36(c)(4)

PEN 1170.18(c)

PEN 667(e)(2)(C)(iv)

Fifth Holding:

Section 1001.36 provides the trial court with discretion to deny mental health diversion even if it finds a defendant meets the statutory eligibility and suitability criteria. Such discretion is commonly referred to as a court’s residual discretion.

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:

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

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

Sixth 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, 449

Seventh Holding:

(Gary note: The court then described facts specific to this defendant this case that led it to the conclusion that the court abused its discretion in concluding the defendant posed an unreasonable risk of danger to the public safety. One of the elements of the trial court’s concern was the defendant’s need for medication. I have listed the authority cited by the court on that point, but I see no value in detailing the facts specific to this case.)

Authority:

Siam v. Superior Court (2026) 118 Cal.App.5th 67, 84, 87 [holding no substantial evidence supported denying diversion even though there were two instances of defendant declining treatment and the offense took place while defendant was being treated pursuant to diversion]

Vaughn v. Superior Court (2024) 105 Cal.App.5th 124, 136−137 [holding no substantial evidence that defendant was unsuitable for diversion even though defendant had sustained periods of psychotropic medication non-compliance and resisted talking about his mental health]

Abstracts and Minutes, Sentencing

Case 000914

Posted on by Gary McCurdy

Error and/or relief

After trial, the trial court issued a criminal protective order (CPO) barring the defendant from contacting his ex-wife and their two minor children. The CPO also included a pretrial order prohibiting him from dissuading the victim or witnesses from attending court hearings.

The order, however, left unselected an option that would allow exceptions for future juvenile, family, or probate court orders for the safe exchange of children and court-ordered visitation.

The CPO should not include the defendant’s children as protected parties, and it should not have included the pretrial provision regarding the dissuading of witnesses. The lack of any exceptions for future orders from other courts does not reflect the trial court’s oral ruling. We therefore partially vacate the CPO and modify it accordingly.

First Holding:

Criminal protective orders are governed by section 136.2; the trial court may issue a pretrial order under subdivision (a) of the statute, which does not survive after final judgment is rendered.

Authority:

PEN 136.2

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

Second Holding:

Section 136.2(i) authorizes posttrial orders if the defendant has been convicted of a qualifying offense, including those involving domestic violence. In a postconviction order, the court may bar the defendant from contacting a victim of the crime, or a percipient witness to the crime. The trial court issued the challenged CPO after trial. The trial court erred by entering a pretrial order.

Authority:

PEN 136.2(i)(1) and (i)(2)

People v. Lopez (2022) 75 Cal.App.5th 227, 236-237

People v. Walts (2025) 112 Cal.App.5th 127, 143

Third Holding:

The trial court should not have included the defendant’s children as protected parties under the CPO. The jury convicted walker of assault on his ex-wife, which is a qualifying domestic violence offense. However, nothing in the record indicates that the defendant’s children were victims or percipient witnesses of that crime. As such, there was no basis to include the defendant’s children as protected parties.

Authority:

PEN 136.2(i)(1)

FAM 13700(a) and (b).)

People v. Lopez (2022) 75 Cal.App.5th 227, 237 [children who were present during domestic violence event, but asleep, did not qualify as victims or percipient witnesses under sec. 136.2(i)]

Fourth Holding:

The trial court expressed its intention to let the family court deal with any potential exceptions to its no-contact order. However, the trial court did not select item 14(b), which would allow an exception for future orders from another court. The CPO therefore does not match the trial court’s stated ruling.

(Gary note: The court did not cite any authority for it order regarding modifying the CPO to permit another court to consider exceptions. When the abstract of judgment or minute order does not comport with the oral pronouncement, the court certainly has the power to make corrections. I have listed some cases on that point below, but keep in mind, they deal with abstracts of judgments and minute orders, not criminal protective orders. But remember that section 1260 grants the appellate courts very broad power to amend the judgment.)

Authority:

PEN 1260 [The court may reverse, affirm, or modify a judgment or order appealed from, or reduce the degree of the offense or attempted offense or the punishment imposed, and may set aside, affirm, or modify any or all of the proceedings subsequent to, or dependent upon, such judgment or order, and may, if proper, order a new trial and may, if proper, remand the cause to the trial court for such further proceedings as may be just under the circumstances.]

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

People v. Delgado (2008) 43 Cal.4th 1059, 1070

People v. Leon (2020) 8 Cal.5th 831, 855

In re Black (1967) 66 Cal.2d 881, 890

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

People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2

Abstracts and Minutes, Appellate Principles, Effective assistance of counsel, Racial Justice Act, Sentencing

Case 000913

Posted on by Gary McCurdy

Error and/or relief

Because the defendant failed to obtain a certificate of probable cause, we conclude that his claim under the Racial Justice Act (RJA) is not cognizable on appeal.

We agree, however, that the abstract of judgment requires correction. So we will direct the clerk of the superior court to correct the abstract of judgment and affirm.

First Holding:

The Legislature enacted the RJA in 2020, effective January 1, 2021—more than a year before the preliminary hearing in this case. Under the RJA, the state shall not seek or obtain a criminal conviction or seek, obtain, or impose a sentence on the basis of race, ethnicity, or national origin.

The defendant argues that expert testimony at the preliminary hearing exhibited bias or animus towards the defendant because of the defendant’s race, ethnicity, or national origin. Alternatively, if his RJA claim is forfeited due to counsel’s failure to object below, he argues that counsel rendered ineffective assistance. Although an RJA claim may be raised on direct appeal, the gravamen of the defendant’s RJA claim is that he should be relieved of his otherwise knowing, intelligent, and voluntary plea agreement as it was obtained in violation of the RJA.

Because his claim thus goes to the validity of his plea, it is not cognizable on appeal absent a certificate of probable cause.

When the judgment appealed from was obtained by the defendant’s plea of guilty or no contest, the sole exceptions to the requirement of a certificate are for appeals solely on noncertificate grounds postplea matters not challenging his plea’s validity and/or matters involving a search or seizure whose lawfulness was contested pursuant to section 1538.5.

Authority:

PEN 745

PEN 1237.5

Cal. Rules of Court, rule 8.304(b)

People v. Stamps (2020) 9 Cal.5th 685, 694

Second Holding:

Section 1237.5’s requirement of a certificate of probable cause should be applied in a strict manner, as it lays down a condition precedent to the taking of an appeal within its scope. Its assumption is that, as a general matter, a judgment of conviction entered on a defendant’s plea of guilty or nolo contendere does not present any issue warranting relief on appeal, and hence should not be reviewed thereon.

Authority:

People v. Mendez (1999) 19 Cal.4th 1084, 1097-1098

Third Holding:

The defendant’s claim of ineffective assistance arises from counsel’s performance before entry of the plea, and courts have consistently held that claims of ineffective assistance deriving from counsel’s preplea acts require a certificate.

Authority:

People v. Mendez (1999) 19 Cal.4th 1084, 1092 [deeming counsel’s failure to request a hearing on competency a certificate issue]

People v. Moore (2024) 104 Cal.App.5th 90, 94 [claim that counsel was ineffective for failing to request pretrial mental health diversion requires certificate of probable cause]

People v. Stubbs (1998) 61 Cal.App.4th 243, 244–245 [challenge that counsel’s preplea performance was deficient requires a certificate of probable cause]

Fourth Holding:

Nor can we find any suggestion that the Legislature intended to exempt RJA claims from the requirements of section 1237.5.

Had the Legislature intended for RJA claims to be decided on their merits whenever raised, it would not have required RJA motions to be made as soon as practicable and would have exempted such motions from the traditional rules of appellate forfeiture.

Requiring a defendant to obtain a certificate of probable cause to challenge grounds going to the legality of the proceedings after a plea is neither novel nor new, and the Legislature is deemed to be aware of existing laws and judicial constructions in effect at the time legislation is enacted.

Authority:

People v. Midell (2025) 113 Cal.App.5th 1060, 1076

People v. Frahs (2020) 9 Cal.5th 618, 634

Fifth Holding:

The purpose for requiring a certificate of probable cause is to discourage and weed out frivolous or vexatious appeals challenging convictions following guilty and nolo contendere pleas.

Thus, a trial court must issue the certificate if the defendant’s statement under section 1237.5 presents any cognizable issue for appeal which is not clearly frivolous and vexatious. If a court refuses to issue a certificate of probable cause, the defendant may seek a writ of mandate from the appellate court.

This low bar for issuance of a certificate would not hinder defendants from validly challenging their convictions based on alleged RJA violations.

Authority:

People v. Panizzon (1996) 13 Cal.4th 68, 75

People v. Johnson (2009) 47 Cal.4th 668, 676

Sixth Holding:

Because the defendant did not obtain a certificate of probable cause, our review of his claims is thus limited to those issues that do not require a certificate.

Authority:

Cal. Rules of Court, rule 8.304(b)(3)

Seventh Holding:

The abstract of judgment contains a clerical error. Although the defendant admitted a firearm enhancement under section 12022.53(c), the trial court ultimately elected to impose a lesser enhancement under section 12022.53(d), as permitted in Tirado. The abstract of judgment, however, erroneously lists a section 12022.53(c) enhancement. We therefore direct the clerk of the superior court to correct the abstract of judgment.

Authority:

People v. Tirado (2022) 12 Cal.5th 688

People v. Mitchell (2001) 26 Cal.4th 181, 185 [a reviewing court may correct a clerical error in an abstract of judgment at any time]