Category Archives: Standard of review

Appellate Principles, Duty of the court, Sentencing, Standard of review

Case 000633

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in calculating the defendant’s pretrial custody credits and awarded him too few. The judgment is modified accordingly.

Holding:

We independently review whether a trial court has correctly awarded custody credits. A defendant accrues actual custody credits pursuant to section 2900.5 for time spent in custody prior to sentencing. Actual custody credits are calculated by adding together “all days of custody” the defendant has served. The failure to award earned custody credits results in an unauthorized sentence, which we may correct. Because the amount of presentence credits appears from our record, we may modify the award of presentence credits to reflect the correct amount.

Authority:

PEN 2900.5

People v. Arevalo (2018) 20 Cal.App.5th 821, 827

People v. Anaya (2007) 158 Cal.App.4th 608, 611

People v. Boyd (2024) 103 Cal.App.5th 56, 65–71

People v. Jones (2000) 82 Cal.App.4th 485, 493

Amelioration, Fines and fees, Retroactivity, Sentencing, Standard of review

Case 000629

Posted on by Gary McCurdy

Error and/or relief

At the resentencing hearing under section 1172.75, the superior court imposed a $10,000 restitution fine under section 1202.4(b), that is no longer enforceable or collectible, and it imposed additional fines and fees that were not originally imposed and which came into effect after the defendant’s original sentencing. We modify the judgment by vacating the challenged fines and fees.

First Holding:

In 2021, the Legislature enacted SB (Stats. 2021 (2021-2022 Reg. Sess.), retroactively invalidating prison prior enhancements imposed pursuant to section 667.5(b), except those that were based on a conviction for a sexually violent offense. Once the court verifies that the current judgment includes such a sentencing enhancement, the court shall recall the sentence and resentence the defendant. Resentencing under section 1172.75 is not limited to striking the section 667.5(b), enhancement. Rather, the court must conduct a full resentencing.

Authority:

PEN 1172.75

People v. Green (2024) 104 Cal.App.5th 365, 368, 373

People v. Rogers (2025) 108 Cal.App.5th 340, 348, fn. 5

People v. Gray (2024) 101 Cal.App.5th 148, 163

People v. Burgess (2022) 86 Cal.App.5th 375, 381

People v. Garcia (2024) 101 Cal.App.5th 848, 855

Second Holding:

Our review of the imposition of fines and fees is de novo.

Authority:

People v. Arroyo (2016) 62 Cal.4th 589, 593 [de novo review in cases of statutory interpretation]

People v. Guillen (2013) 218 Cal.App.4th 975, 983 [authority of trial court to impose fine or fees turns on relevant statutory provisions and presents essentially an issue of law]

Third Holding:

Effective January 1, 2025, section 1465.9 was amended to add subdivision (d), which provides that, on 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. The defendant was resentenced in November 2024, weeks before the effective date of the amendment. But the amendment applies retroactively to his sentence. The section 1202.4 restitution fine, which was imposed over 10 years ago in 2003, must therefore be vacated.

Authority:

PC 1465.9

In re Estrada (1965) 63 Cal.2d 740, 748 [absent evidence to the contrary, we presume ameliorative criminal statutes apply retroactively to all nonfinal judgments]

Fourth Holding:

The statute authorizing the remaining fines and fees did not become effective until after the defendant’s conviction. Accordingly, the superior court was not authorized to impose these fines and fees on resentencing.

Authority:

People v. Alford (2007) 42 Cal.4th 749, 754

People v. Castillo (2010) 182 Cal.App.4th 1410, 1414

People v. Hayes (1989) 49 Cal.3d 1260, 1274 [A new statute is generally presumed to operate prospectively absent an express declaration of retroactivity or a clear and compelling implication that the Legislature intended otherwise]

Immigration, Standard of review

Case 000627

Posted on by Gary McCurdy

Error and/or relief

The defendant appeals the trial court’s denial of his motion to vacate a conviction pursuant to section 1473.7. We reverse and remand with instructions for the trial court to enter an order granting the motion.

First Holding:

Section 1473.7 allows noncitizens who have served their sentences to vacate their convictions if they can establish that their convictions are invalid due to prejudicial error impairing their ability to meaningfully understand, defend against, or knowingly accept the actual or potential immigration consequences of their conviction. To show prejudicial error, the noncitizen must demonstrate a reasonable probability that the noncitizen would have rejected the plea if the noncitizen had correctly understood the immigration consequences.

Authority:

PEN 1473.7

People v. Espinoza (2023) 14 Cal.5th 311, 316

Second Holding:

In making this determination, we consider the totality of the circumstances. Those circumstances include the noncitizen’s ties to the United States, the importance the noncitizen placed on avoiding deportation, the noncitizen’s priorities in negotiating a plea bargain, and whether the noncitizen had reason to believe an immigration-neutral disposition was available. However, this list is not exhaustive, and no single type of evidence is necessary for relief. Any assertions by the noncitizen must be corroborated with objective evidence. Objective evidence can include facts in declarations, contemporaneous documentation of the noncitizen’s immigration concerns, and the charges the noncitizen faced.

Authority:

People v. Espinoza (2023) 14 Cal.5th 311, 316, 320-321

Third Holding:

We review independently whether noncitizens have demonstrated a reasonable probability they would have rejected a plea offer had they understood its immigration consequences. Where the trial court has based its rulings on a cold record, or, in other words, only documentary evidence, we need not defer to trial court fact finding.

Authority:

People v. Espinoza (2023) 14 Cal.5th 311, 319

Fourth Holding:

The noncitizen’s subjective misunderstanding qualifies as sufficient error under the statute. The focus is on noncitizen’s own error in not understanding the plea would subject him to mandatory deportation and permanent exclusion.

Authority:

People v. Manzanilla (2022) 80 Cal.App.5th 891, 909–910

Fifth Holding:

There is a critical difference between being notified the plea may have immigration consequences and being told the plea will make one immediately deportable. When a noncitizen receives only the first advisement in a situation calling for the second, the advisement is insufficient. A failure to advise of certain immigration consequences of plea rendered representation constitutionally deficient

Authority:

People v. Vivar (2021) 11 Cal.5th 510, 523, 533

Sixth Holding:

Deep, lifelong ties to United States is compelling evidence a noncitizen would reject plea leading to mandatory deportation. This desire is particularly strong where the noncitizen is an asylee. In addition to facing disruption of the most important relationships in the noncitizen’s life, an asylee must also fear returning to a place the asylee has an adjudicated reason to fear.

Authority:

People v. Rodriguez (2021) 68 Cal.App.5th 301, 325

People v. Padron (2025) 109 Cal.App.5th 950, 963

Appellate Principles, Elements of crime, Jury instructions, Standard of review, Sufficiency of and substantial evidence

Case 000624

Posted on by Gary McCurdy

Error and/or relief

The trial court erred by failing to instruct the jury regarding unlawful detention or unlawful arrest. The judgment is reversed. Because there was sufficient evidence that a properly instructed jury could have returned the same verdict, double jeopardy principles do not apply and the matter may be retried.

First Holding:

All criminal defendants have the right to a jury determination that the defendant is guilty of every element of the crime with which he is charged, beyond a reasonable doubt. Thus, the trial court has a sua sponte duty to instruct the jury on the essential elements of the charged offense.

A claim of instructional error is reviewed de novo. An appellate court reviews the wording of a jury instruction de novo and assesses whether the instruction accurately states the law.

Similarly, if the trial court decides to provide supplemental instruction to the jury during deliberation, we review de novo the legal accuracy of any supplemental instructions provided.

Authority:

People v. Merritt (2017) 2 Cal.5th 819, 824

People v. Mitchell (2019) 7 Cal.5th 561, 579

People v. Parker (2025) 113 Cal.App.5th 1261, 1271

Second Holding:

Section 69 provides that every person who attempts, by means of any threat or violence, to deter or prevent an executive officer from performing any duty imposed upon the officer by law is punishable by a fine or by imprisonment. Similarly, section 148(a)(1) prohibits resisting an officer in the performance of duty, though the resistance need not be forceful or violent.

Authority:

PEN 69

PEN 148

People v. Hupp (2023) 96 Cal.App.5th 946, 950

In re A.L. (2019) 38 Cal.App.5th 15, 22

Third Holding:

The lawfulness of an officer’s conduct is an essential element of both offenses because there is no distinction between performing a duty and lawfully performing a duty, since an officer who is acting unlawfully cannot be said to be performing his or her duty. And the prosecution has the burden of proving the lawfulness of the officers’ conduct beyond a reasonable doubt. Thus, the lawfulness of the officers’ conduct is an essential element upon which the trial court had a sua sponte duty to properly instruct the jury.

Authority:

In re A.L. (2019) 38 Cal.App.5th 15, 25

People v. Southard (2021) 62 Cal.App.5th 424, 435

Fourth Holding:

To convict defendant of a violation of section 69 or 148, the prosecution was required to prove, and the jury was required to find, that officers were engaged in the lawful performance of their duties. The pattern jury instructions include definitions for various scenarios in which an officer can be considered engaged in a lawful performance of duty, including during a detention, an arrest without a warrant, and an arrest for a misdemeanor offense. (CALCRIM 2670.)

However, the trial court did not give any of these definitions to the jury. Nor did the trial court offer its own definition for the jury to consider. In essence, the trial court instructed the jury that it was required to find that the officers were engaged in a lawful performance of duty but provided no definitions or guidance to the jury regarding how to make this finding. This was clearly error.

Authority:

People v. Serrano (2022) 77 Cal.App.5th 902, 913 [Where a term or phrase has a special definition for purposes of a statute, the failure to define it for the jury is error.]

People v. Reyes (1992) 2 Cal.App.4th 1598, 1601 [Failure to define terms essential to an element of an offense is “equivalent to the omission of an element from the definition of the crime given to the jury.]

Fifth Holding:

The question of reasonable or probable cause is ordinarily one for the court and, where there are disputed facts to be resolved by a jury, the jury is to be told that if it finds the facts in a designated way such facts do or do not amount to probable cause.

Authority:

Roberts v. City of Los Angeles (1980) 109 Cal.App.3d 625, 629-630

Sixth Holding:

Whether an offense has been committed in an officer’s presence is determined by whether the officer could testify to actual knowledge to every element of the offense.

Authority:

People v. Garrison (1961) 189 Cal.App.2d 549, 557

In re Alonzo C. (1978) 87 Cal.App.3d 707, 714

People v. Welsch (1984) 151 Cal.App.3d 1038, 1044

Seventh Holding:

When the jury is misinstructed on an element of the offense reversal is required unless we are able to conclude that the error was harmless beyond a reasonable doubt. In such cases, a reviewing court must determine whether it is clear beyond a reasonable doubt that a rational jury would have rendered the same verdict absent the error. Here, we cannot say with any confidence that the jury would have reached the same verdict had it been properly instructed in this case.

Authority:

People v. Wilkins (2013) 56 Cal.4th 333, 348

People v. Merritt (2017) 2 Cal.5th 819, 831

Eighth Holding:

It has long been settled that the Double Jeopardy Clause’s general prohibition against successive prosecutions does not prevent the government from retrying a defendant who succeeds in getting his first conviction set aside, through direct appeal or collateral attack, because of some error in the proceedings leading to conviction. However, a settled exception to this rule permitting retrial after a successful appeal occurs when a conviction has been reversed due to insufficiency of the evidence.

Thus, even where reversal is required based on instructional error, an appellant’s arguments regarding insufficiency of the evidence should be considered to determine whether retrial is barred by double jeopardy principles. The inquiry at this stage is to determine whether, if properly instructed, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

Authority:

People v. Wilson (2023) 14 Cal.5th 839, 852-853

People v. Wetle (2019) 43 Cal.App.5th 375, 388

People v. Hallock (1989) 208 Cal.App.3d 595, 608-609;

In re Martinez (2017) 3 Cal.5th 1216, 1224 [Where instructional error occurs, retrial is barred if defendant can show there was insufficient evidence to support a conviction even when the law is properly construed.]

Ninth Holding:

While an offense may be considered a “wobbler” punishable as either a misdemeanor or felony, its status as a wobbler has no bearing on the lawfulness of a warrantless arrest. This is because the commission of a wobbler is a felony at the time it is committed and remains deemed a felony unless charged as a misdemeanor by the People or reduced to a misdemeanor by the sentencing court.

Authority:

People v. Moomey (2011) 194 Cal.App.4th 850, 857-858

People v. Statum (2002) 28 Cal.4th 682, 685

Appellate Principles, Sentencing, Standard of review, Statutory interpretation

Case 000623

Posted on by Gary McCurdy

Error and/or relief

The court erred in concluding that the defendant was not eligible for recall of sentence under section 1172.75 because he is serving a term of life without the possibility of parole (LWOP). The prohibition applies only to those who are service an LWOP sentence as a result of conviction of specified sex offenses. It does not apply to those serving an LWOP sentence for other offenses. The language of the exclusion is conjunctive, not disjunctive. [Gary note: REVIEW HAS BEEN GRANTED IN THIS CASE AND HELD PENDING DIXON.]

First Holding:

As of January 1, 2025, 1172.75(f) provides that an individual who has been convicted of a sexually violent offense as defined in section 6600(b) of the Welfare and Institutions Code and sentenced to death or a life term without the possibility of parole, who, as of January 1, 2025, has not had their judgment reviewed and verified by the sentencing court as provided in subdivision (c), is not eligible for recall and resentencing under this section.

Authority:

PEN 1172.75(f)

Second Holding:

This is a question of statutory interpretation that we review de novo.

Authority:

Brown v. City of Inglewood (2025) 18 Cal.5th 33, 40

Third Holding:

When interpreting any statute, our goal is to determine the Legislature’s intent and give effect to the statute’s purpose. We begin by examining the statute’s words, giving them a plain and commonsense meaning. We do not, however, consider the statutory language in isolation. We construe the words in question in context, keeping in mind the nature and obvious purpose of the statute. We also construe every statute with reference to the whole system of law of which it is a part, so that all may be harmonized and anomalies avoided. The statute’s plain meaning controls the court’s interpretation unless its words are ambiguous. If the statutory language is unclear, we may look to legislative history and public policy as aids in determining how best to give effect to Legislative intent.

Authority:

Iloff v. LaPaille (2025) 18 Cal.5th 551, 560-561

Hohenshelt v. Superior Court (2025) 18 Cal.5th 310, 330

People v. Rhodius (2025) 17 Cal.5th 1050, 1057

Fourth Holding:

Subsequent to defendant’s original sentencing, SB 136 (2019–2020 Reg. Sess.) amended section 667.5(b) to allow for the imposition of one-year prior prison term enhancements only for specified sexually violent offenses. Thereafter, the Legislature added section 1172.75, which provides that any sentence enhancement that was imposed prior to January 1, 2020, pursuant to section 667.5(b), except for any enhancement imposed for a prior conviction for a sexually violent offense, is legally invalid. It also provided a process for recall of sentences rendered invalid and resentencing of affected defendants.

Authority:

PEN 1172.75

Fifth Holding:

Resentencing pursuant to section 1172.75 entitles a defendant to a full resentencing, including application of the rules of the Judicial Council and application of any other changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing. Resentencing pursuant to section 1172.75 must “result in a lesser sentence than the one originally imposed as a result of the elimination of the repealed enhancement, unless the court finds by clear and convincing evidence that imposing a lesser sentence would endanger public safety. In no circumstance can resentencing result in a longer sentence than the one originally imposed.

Authority:

PEN 1172.75

People v. Rhodius (2025) 17 Cal.5th 1050, 1067, fn. 3 [where section 1172.75 applies, it requires full resentencing, not simply striking the now-invalidated priors]

Sixth Holding:

Effective January 1, 2025, SB 285 amended section 1172.75 to add subdivision (f). Subdivision (f) provides: “Commencing on January 1, 2025, an individual who has been convicted of a sexually violent offense as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code and sentenced to death or a life term without the possibility of parole, who, as of January 1, 2025, has not had their judgment reviewed and verified by the sentencing court as provided in subdivision (c) [of section 1172.75], is not eligible for recall and resentencing under this section. This subdivision does not apply retroactively.”

Authority:

PEN 1172.75(f)

Seventh Holding:

The ordinary and usual usage of “and” is as a conjunctive, meaning “an additional thing, “also” or “plus.” By contrast, use of the word “or” in a statute indicates an intention to use it disjunctively so as to designate alternative or separate categories. But the word “and” is not always to be taken conjunctively. It is sometimes, in a fair and rational construction of a statute, to be read as if it were “or,” and taken disjunctively.

Thus, courts will sometimes substitute “or” for “and,” and vice versa, when necessary to accomplish the evident intent of the statute, but doing so is an exceptional rule of construction. Thus, for example, a court may substitute “or” for “and” to correct a drafting error where it appears clear that a word has been erroneously used, and a judicial correction will best carry out the intent of the adopting body. Additionally, a court may substitute “or” for “and” to avoid a construction of the statute that would make some words surplusage.

Authority:

People v. Reynoza (2024) 15 Cal.5th 982, 990–991

In re C.H. (2011) 53 Cal.4th 94, 102–103, superseded by statute on another ground as stated in In re Edward C. (2014) 223 Cal.App.4th 813, 824

(GARY NOTE: AS CAN BE READ IN THE SIMILAR CASE THAT WAS PUBLISHED THIS DATE, the court engaged in examining how the Legislature used “or” in other parts of the section where “or” was clearly intended, and “and” similarly. It was clear to this court that the Legislature was aware of the difference and that it intended to mean exactly what it said–the exclusion applies to a person who was sentenced to LWOP because of specified sexual offenses. The legislative history revealed that the amendment was in response to the impact of section 1172.75 on the sentence of a notorious defendant convicted of murder and sexual offenses for which he received death sentence several decades earlier. It also noted Dixon (in which review has been granted), which concluded that nothing in section 1172.75 excluded individuals under a judgment of death.

(People v. Dixon (2025) 112 Cal.App.5th 236, 247, review granted Oct. 22, 2025, S292223 The issues on review in the Supreme Court in Dixon are described as: (1) May a superior court modify a death judgment under the recall and resentencing procedure in Penal Code section 1172.75? (2) Did the Court of Appeal err in holding that the exclusivity provision of Penal Code section 1509 precludes modification of a death judgment under Penal Code section 1172.75? (3) Did the superior court have jurisdiction to resentence defendant pursuant to Penal Code section 1172.75 when his appeal was pending before this court?

(People v. Robinson (2026) 120 Cal.App. 5th 516 (F089332, filed 5/8/2026) but review was granted in the published decision on 7/16/26, granted and held pending Dixon S292223)

Equal protection, Probation Parole PRCS, Standard of review

Case 000622

Posted on by Gary McCurdy

Error and/or relief

Defendant, age 23 at the time of the offense, was sentenced to life without the possibility of parole (LWOP). He sought a Franklin hearing to be able to present evidence that could be considered as mitigating factors related to his youth at the time of the crime in the event there is ever a parole hearing. The trial court denied the motion to conduct the hearing, on the basis that LWOP inmates will never be considered for parole. Reversed. We cannot determine whether the basis of his conviction would render him eligible even if the reasoning in Briscoe regarding a violated of equal protection is sound. We remand the matter to allow defendant to establish he is entitled to a Franklin hearing.

First Holding:

A Franklin hearing permits parties to preserve evidence relevant to a future youthful offender parole hearing under section 3051. Certain persons are, however, categorically ineligible for youth offender parole hearings, including cases in which an individual is sentenced to life in prison without the possibility of parole for a controlling offense that was committed after the person had attained 18 years of age.

Authority:

In re Cook (2019) 7 Cal.5th 439, 458-459

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

People v. Hardin (2024) 15 Cal.5th 834, 843

Second Holding:

California’s youth offender parole statute offers opportunities for early release to certain persons who are incarcerated for crimes they committed at a young age. To this end, section 3051 requires the Board of Parole Hearings to hold a parole hearing for the purpose of reviewing the parole suitability of any prisoner who was 25 years of age or younger at the time of the controlling offense. The minimum number of years of incarceration before eligibility was 15, 20, or 25 years, depending on the length and nature of the sentence imposed.

Authority:

PEN 3051

People v. Hardin (2024) 15 Cal.5th 834, 843

Third Holding:

The court in Briscoe concluded, notwithstanding Hardin, section 3051 violates equal protection as applied to youth offenders who were convicted as a major participant who acted with reckless indifference to human life. Defendant may have been so convicted and therefore might be entitled to relief under section 3051. The trial court consequently erred in summarily denying defendant’s motion. Without taking a position on the correctness of Briscoe, we remand with directions to allow defendant the opportunity to demonstrate his eligibility for a Franklin hearing.

Authority:

People v. Briscoe (2024) 105 Cal.App.5th 479, 485, 494

Fourth Holding:

As a result of changes in the law regarding the liability of persons who were not the actual killer, a person may now be found guilty of murder if the person was a major participant in the felony and acted with reckless indifference to human life as described in section 190.2(d). Section 190.2(d) is the section describing a special circumstance under which a person may be punished by death or LWOP.

Thus, a person may be convicted simply of first degree murder as a major participant in the underlying felony who acted with reckless indifference to human life and be sentenced to either 25 years to life (the sentence for first degree murder without special circumstances) or LWOP (the sentence for the same act but in which the special circumstance was alleged that the defendant was a major participant in the underlying felony who acted with reckless indifference to human life).

Briscoe concluded that section 3051 purports to include the defendants convicted of the same behavior and received a sentence of 25 years to life, but to exclude those for whom the special circumstance describing the same behavior was alleged and found true and an LWOP sentence was imposed.

Briscoe concluded that section 3051 improperly denied equal protection under those circumstances, and that such individual should be eligible for consideration under section 3051 even if the sentence was LWOP.

Authority:

People v. Briscoe (2024) 105 Cal.App.5th 479, 494

Fifth Holding:

The equal protection clause of the Fourteenth Amendment to the United States Constitution provides that no state may deny to any person within its jurisdiction the equal protection of the laws. At core, the requirement of equal protection ensures that the government does not treat a group of people unequally without some justification.

The degree of justification required to satisfy equal protection depends on the type of unequal treatment at issue. For the classification at stake here, based on a person’s criminal sentence, the general rule is that legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest.

A court applying this standard finds a denial of equal protection only if there is no rational relationship between a disparity in treatment and some legitimate government purpose.

We analyze equal protection claims de novo

Authority:

People v. Hardin (2024) 15 Cal.5th 834, 847

People v. Briscoe (2024) 105 Cal.App.5th 479, 487

Sixth Holding:

Hardin considered that it does not violate equal protection for section 3051 to apply to those sentenced to LWOP who committed the offense before they were 18 years old but not apply to those sentenced to LWOP for crimes committed as an adult.

The defendant Hardin did not demonstrate that the Legislature acted irrationally in declining to grant the possibility of parole to young adult offenders convicted of special circumstance murder, even as it has granted youth offender hearings to young adults convicted of other offenses.

But the court made this conclusion without foreclosing the possibility of other as-applied challenges to the statute.

Authority:

People v. Hardin (2024) 15 Cal.5th 834, 838-839

Discretion, Standard of review

Case 000618

Posted on by Gary McCurdy

Error and/or relief

We will reverse the conviction and remand for the trial court to reconsider defendant’s suitability for mental health diversion according to the factors in section 1001.36(c) and defendant’s current circumstances. To the extent the court exercises its residual discretion under section 1001.36(a), it must take into account the Legislature’s intent and the statute’s underlying purposes.

Although we express no opinion as to how the court should decide the matter on remand, we note that the suitability inquiry must be informed not only by defendant’s past performance but also by his present circumstances and prospects for diversion compliance.

First Holding:

Since 2018, section 1001.36 has afforded trial courts discretion to grant criminal defendants suffering from certain recognized mental disorders pretrial diversion to receive mental health treatment. Diversion allows for the suspension of criminal proceedings and potential dismissal of charges upon successful completion of mental health treatment. The express purpose of the legislation was to increase diversion of eligible individuals, and legislative amendments have only confirmed the Legislature’s desire to expand mental health treatment through diversion.

Authority:

PEN 1001.36

People v. Brown (2024) 101 Cal.App.5th 113, 119

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

Second Holding:

As currently enacted, a defendant accused of a qualifying offense is eligible for mental health diversion if the defendant has been diagnosed with a qualifying mental health disorder which was a significant factor in the commission of the charged offense. If a defendant is found eligible for mental health diversion, a trial court must also consider whether the defendant is suitable for diversion.

According to the statute, a defendant is suitable for diversion if, in the opinion of a mental health expert, the defendant’s symptoms would respond to treatment; the defendant consents to diversion and waives his right to a speedy trial; the defendant agrees to comply with treatment; and the defendant will not pose an “unreasonable risk of danger to public safety” as defined in section 1170.18.

Section 1170.18 defines “unreasonable risk of danger to public safety” as an unreasonable risk that the defendant will commit one of certain enumerated violent felonies, known colloquially as “super strikes.”

Authority:

PEN 1001.36

PEN 1170.18

Third Holding:

Even if a defendant meets the enumerated suitability criteria, a trial court retains discretion to deny diversion. But that residual discretion must be exercised consistent with the principles and purpose of the governing law. We review a decision to deny diversion for abuse of discretion.

Authority:

People v. Qualkinbush (2022) 79 Cal.App.5th 879, 887, 888, 891

Fourth Holding:

We see no substantial evidence in the record that would have supported an unsuitability finding as defined under the statute. Section 1001.36(c) prescribes specific suitability factors and does not expressly contemplate a finding of unsuitability based on other factors not identified in the statute. We acknowledge it is possible to construe the court’s finding of unsuitability as an exercise of its residual discretion under section 1001.36(a).

But the only reasoning articulated by the court involved defendant’s criminal history and past failures to appear (which could themselves have been connected to a mental health disorder), his past difficulties complying with treatment (notwithstanding the evaluators’ conclusions about his prospects for future treatment), and the circumstances of the charged offense. The trial court’s statement of the reasons for its decision thus did not reflect consideration of the underlying purposes of the statute and explain why diversion would not meet those goals.

Authority:

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

Discretion, Standard of review

Case 000617

Posted on by Gary McCurdy

Error and/or relief

The petitioner unsuccessfully moved for mental health diversion under Penal Code section 1001.36. In petitioning this court for a writ of mandate, the petitioner contends that the trial court erred in finding him ineligible on six counts and eligible but unsuitable on the seventh count. We agree. We therefore grant the petition and direct the trial court to vacate its order denying the motion for mental health diversion and hold a new hearing on the motion.

First Holding:

In 2018, the Legislature enacted section 1001.36 to create a program of pretrial diversion for criminal defendants with diagnosed mental health disorders. Diversion allows for the suspension of criminal proceedings and potential dismissal of charges upon successful completion of mental health treatment.

The express purpose of this legislation was to increase diversion of such individuals based on concerns that incarceration only serves to aggravate their preexisting conditions and does little to deter future lawlessness. Successful mental health treatment, in contrast, both helps the individual and makes the community safer. More recent amendments have only confirmed the Legislature’s desire to expand mental health treatment through diversion.

Authority:

PEN 1001.36

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

Second Holding:

Effective January 1, 2023, mental health diversion requires trial court findings that the defendant is both eligible for diversion and suitable for the program. The criteria for each are specific in the statute.

Defendants are eligible if they have been diagnosed with a recognized mental disorder that was a significant factor in the commission of the criminal offense with which they are charged.

They are suitable if: (1) in the opinion of a qualified mental health expert, the defendant’s mental disorder would respond to treatment; (2) the defendant agrees to waive their speedy trial rights; (3) the defendant agrees to comply with treatment requirements; and (4) the defendant will not pose an unreasonable risk of danger to public safety as defined in sections 1170.18 and 667(e)(2)(C)(iv).

Authority:

PEN 1001.36

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

Third Holding:

A defendant’s eligibility no longer turned on findings to the court’s satisfaction. Rather, defendants are generally eligible if they have been diagnosed with a recognized mental disorder. Beyond that, the amended statute creates a presumption that the defendant’s diagnosed mental disorder was a significant factor in the commission of the charged crime.

The court is directed to find a causal connection unless there is clear and convincing evidence that the mental disorder was not a motivating factor, causal factor, or contributing factor to the defendant’s involvement in the alleged offense. In practical terms, following the 2022 amendments, defendants with a proper mental health diagnosis will seldom be ineligible for diversion. The more difficult question will be determining whether they are suitable.

Authority:

PEN 1001.36

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

People v. Harlow (2025) 113 Cal.App.5th 485, 490

Fourth Holding:

We review for substantial evidence a court’s finding by clear and convincing evidence that a mental disorder was not a motivating factor, causal factor, or constributing factor. We consider whether the record as a whole contains substantial evidence from which a reasonable fact finder could have found it highly probable that the fact was true.

Authority:

PEN 1001.36(b)(2)

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

Fifth Holding:

Of the four factors set forth in the statute regarding suitability, only the fourth necessitates a trial court finding–that the defendant will not pose an unreasonable risk of danger to public safety if treated in the community. But that risk is severely limited by incorporation of sections 1170.18 and 667(e)(2)(C)(iv) as the definition of unreasonable risk of danger to public safety and the list of felonies conviction of which would preclude eligibility.

Authority:

PEN 1001.36

PEN 1170.18

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

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

Sixth Holding:

Even where defendants make a prima facie showing that they meet all the express statutory requirements, the court may still exercise its discretion to deny diversion. But this residual discretion 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:

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

Seventh Holding:

To the extent the court’s finding of unsuitability could be based on any of the four eligibility factors, it is unsupported by substantial evidence.

Authority:

Flareau v. Superior Court of Riverside County (2026) 118 Cal.App.5th 681, 690 [when reviewing the trial court’s suitability finding, we must determine whether substantial evidence supports the trial court’s findings concerning the four suitability factors]

Eighth Holding:

The People argue that the trial court’s suitability finding was instead its use of its residual discretion. If that is the case, however, the trial court abused its discretion by failing to consider the underlying purposes of section 1001.36 or explain why diversion would not meet those goals.

Authority:

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

Discretion, Juveniles, Standard of review, Sufficiency of and substantial evidence

Case 000613

Posted on by Gary McCurdy

Error and/or relief

In decided the transfer the juvenile’s case to adult court, the court erred in evaluating whether the minor can be rehabilitated prior to expiration of the juvenile court’s jurisdiction and based its decision at least in part on unreliable data presented by a prosecution witness. We remand for the juvenile court to reconsider the second criterion under section 707(a)(3)(B), consistent with this opinion, whetherthe minor can be rehabilitated prior to the expiration of the court’s jurisdiction.

In addition, the court is to make a finding whether, in light of all five statutory criteria, the People have met their burden of demonstrating by clear and convincing evidence that the minor. is not amenable to rehabilitation.

First Holding:

Under Welfare and Institutions Code section 707(a)(1), when a minor 16 years or older is alleged to have committed a felony, the prosecution may make a motion to transfer the minor from juvenile court to a court of criminal jurisdiction. The prosecution bears the burden of proving by clear and convincing evidence that the minor is not amenable to rehabilitation while under the jurisdiction of the juvenile court.

The clear and convincing evidence standard demands a degree of certainty greater than that involved with the preponderance standard, but less than what is required by the standard of proof beyond a reasonable doubt Where clear and convincing proof is required, the proponent must convince the jury or judge that it is highly probable that the facts which he asserts are true.

Authority:

WIC 707(a)(1)

Cal. Rules of Court, rule 5.770(a)

In re J.S. (2024) 105 Cal.App.5th 205, 211 and fn. 2

In re Miguel R. (2024) 100 Cal.App.5th 152, 164

Conservatorship of O.B. (2020) 9 Cal.5th 989, 998

Second Holding:

There are five criteria set forth in Welfare and Institutions Code section 707 that a court is required to consider in deciding whether a minor should be transferred to a court of criminal jurisdiction, including ((1) the degree of criminal sophistication exhibited by the minor; (2) whether the minor can be rehabilitated prior to the expiration of the juvenile court’s jurisdiction; (3) the minor’s previous delinquent history; (4) success of previous attempts by the juvenile court to rehabilitate the minor; and (5) the circumstances and gravity of the offense alleged in the petition to have been committed by the minor.

For each of these five criteria, section 707 provides a nonexhaustive mandatory list of factors to which a juvenile court shall give weight in evaluating the criterion.

Authority:

WIC 707(a)(3)(A)-(E)

Third Holding:

Under the second factor, the court must focus on whether there is enough time to rehabilitate the minor while the minor is still eligible to remain under juvenile court jurisdiction.

Authority:

In re Miguel R. (2024) 100 Cal.App.5th 152, 166

Fourth Holding:

We review the juvenile court’s ruling on a transfer motion for abuse of discretion. The abuse of discretion standard is not a unified standard; the deference it calls for varies according to the aspect of a trial court’s ruling under review.

The juvenile court’s findings with respect to each of section 707’s five criteria are findings of fact reviewed for substantial evidence. In conducting substantial evidence review, we draw all reasonable inferences in support of the court’s findings.

The juvenile court’s ultimate finding that a minor is not amenable to rehabilitation while under its jurisdiction is likewise reviewed for substantial evidence.

Authority:

In re Miguel R. (2024) 100 Cal.App.5th 152, 165

In re O.F. (2026) 119 Cal.App.5th 133, 160

People v. Cardenas (2020) 53 Cal.App.5th 102, 119

Fifth Holding:

Because the juvenile court must make these findings by clear and convincing evidence, we review its findings by determining whether the record, viewed as a whole, contains substantial evidence from which a reasonable trier of fact could have made the finding of high probability demanded by the clear and convincing evidence standard. The juvenile] court’s conclusions of law are reviewed de novo, and its application of the law to the facts is reversible only if arbitrary and capricious.

Authority:

Conservatorship of O.B. (2020) 9 Cal.5th 989, 1005

In re O.F. (2026) 119 Cal.App.5th 133, 161-162

In re Miguel R. (2024) 100 Cal.App.5th 152, 165

In re J.S. (2024) 105 Cal.App.5th 205, 211

Duty of the court, Jury instructions, Standard of review, Sufficiency of and substantial evidence

Case 000611

Posted on by Gary McCurdy

Error and/or relief

The trial court failed to instruct the jury about how a defendant who is an initial aggressor can regain the right to self-defense.

First Holding:

The defendant’s defense was self-defense, and the trial court accordingly instructed the jury on perfect and imperfect self-defense under CALCRIM No. 505. Over his objection, the trial court also instructed the jury with CALCRIM No. 3471 regarding an initial aggressor’s right to self-defense. However, the trial court omitted language from CALCRIM No. 3471 about how an initial aggressor can regain the right to self-defense. Omission of that language was prejudicial error. Whether a trial court properly instructed a jury is a question of law that we review de novo.

Authority:

People v. Cole (2004) 33 Cal.4th 1158, 1210

Second Holding:

A trial court in a criminal case must instruct on the general principles of law that are closely and openly connected to the facts before the court and are necessary for the jury’s understanding of the case. This includes a sua sponte duty to instruct the jury on an affirmative defense if it appears the defendant is relying on such a defense or if substantial evidence supports it and it is not inconsistent with the defendant’s theory of the case.

Authority:

People v. Hovarter (2008) 44 Cal.4th 983, 1021

People v. Boyer (2006) 38 Cal.4th 412, 469

People v. Ramirez (2015) 233 Cal.App.4th 940, 949

Third Holding:

It is error to give an instruction that is not supported by substantial evidence. Substantial evidence is evidence of reasonable, credible value sufficient to deserve consideration by the jury. In determining whether the evidence is sufficient to warrant a jury instruction, the trial court does not determine the credibility of the defense evidence, but only whether there was evidence which, if believed by the jury, was sufficient to raise a reasonable doubt.

Authority:

People v. Marshall (1997) 15 Cal.4th 1, 39–40

People v. Guiton (1993) 4 Cal.4th 1116, 1129

People v. Wilson (2005) 36 Cal.4th 309, 331

People v. Crew (2003) 31 Cal.4th 822, 835

People v. Salas (2006) 37 Cal.4th 967, 982

Fourth Holding:

As an initial matter, the Attorney General contends the defendant forfeited his contention that it was error to omit the language on how an initial aggressor can regain his right to self defense, because he failed to ask the trial court to include the omitted language. Assuming forfeiture applies, we nonetheless may decline to apply it if the instructional error affected the defendant’s substantial rights. Because the contention affects the defendant’s substantial rights, we consider it.

Authority:

PEN 1259

People v. Jennings (2010) 50 Cal.4th 616, 671 [party may not complain on appeal that instruction correct in law and responsive to evidence was too general or incomplete in absence of request for clarifying language]

People v. Ramirez (2015) 233 Cal.App.4th 940, 949

Fifth Holding:

When a defendant engages in simple assault or trespass and his opponent responds with deadly force so suddenly that the person cannot withdraw, a defendant may immediately use deadly force in self-defense. The qualification in the language omitted from the jury instruction thus applies where the defendant commits a simple assault. But if one makes a felonious assault upon another, or has created appearances justifying the other to launch a deadly counterattack in self-defense, the original assailant cannot slay his adversary in self-defense unless he has first, in good faith, declined further combat, and has fairly notified him that he has abandoned the affray.

Authority:

People v. Quach (2004) 116 Cal.App.4th 294, 301

People v. Conkling (1896) 111 Cal. 616, 626–627

People v. Hecker (1895) 109 Cal. 451, 464 [Where one is the first wrongdoer, but his unlawful act is not felonious, as a simple assault upon the person of another, or a mere trespass upon his property, even though forcible, and this unlawful act is met by a counter assault of a deadly character, the right of self-defense to the first wrongdoer is not lost]

People v. Ramirez (2015) 233 Cal.App.4th 940, 949

People v. Gleghorn (1987) 193 Cal.App.3d 196, 201

People v. Salazar (2016) 63 Cal.4th 214, 249-250 [exception did not apply where defendant approached victim with cocked gun]

Sixth Holding:

We apply the harmless-beyond-a-reasonable-doubt standard in Chapman to determine whether the error merits reversal. The Chapman standard requires us to determine whether it is clear beyond a reasonable doubt that a rational jury would have rendered the same verdict absent the error. We must reverse the conviction under that standard unless we conclude that no rational juror who made the findings reflected in the verdict and heard the evidence at trial court could have had a reasonable doubt regarding the findings necessary to convict the defendant, absent the instructional error.

Authority:

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

People v. Quach (2004) 116 Cal.App.4th 294, 303

People v. Ramirez (2015) 233 Cal.App.4th 940, 953

People v. Merritt (2017) 2 Cal.5th 819, 831

People v. Schuller (2023) 15 Cal.5th 237, 244

Seventh Holding:

Simple assault requires an act that by its nature would directly and probably result in the application of physical force to another person, and the crime does not require actual physical injury or contact to the victim.

Authority:

People v. Harring (2021) 69 Cal.App.5th 483, 503

Eighth Holding:

An instruction is inconsistent with defendant’s theory of case if it requires acknowledging, if only inferentially, existence of facts which defendant otherwise denied. The language omitted from the instruction was not inconsistent with the defendant’s defense.

Authority:

People v. Jo (2017) 15 Cal.App.5th 1128, 1168–1169

People v. Salas (2006) 37 Cal.4th 967, 982–983 [trial court has no duty to instruct on affirmative defense inconsistent with defendant’s theory of case]

Amelioration, Discretion, Sentencing, Standard of review

Case 000610

Posted on by Gary McCurdy

Error and/or relief

The court erroneously believed that the defendant was categorically ineligible for resentencing under section 1172.75 because he was serving an indeterminate sentence under the “Three Strikes” law. Because the record does not clearly indicate that the court would have made the same decision had it been aware of the full scope of its resentencing power and discretion, we reverse and remand the matter with directions for the court to conduct a full resentencing under section 1172.75.

First Holding:

Once the trial court confirms that the underlying judgment includes an invalid prior prison term enhancement, the court must recall the sentence and resentence the defendant. A defendant who is eligible for relief under section 1172.75 is entitled to a full resentencing.

Authority:

PEN 667.5

PEN 1172.75

People v. Rhodius (2025) 17 Cal.5th 1050, 1067, fn. 3

Second Holding:

Section 1172.75(d) establishes several parameters for resentencing.

First, the resentencing shall result in a lesser sentence than the one originally imposed as a result of the elimination of the repealed enhancement, unless the court finds by clear and convincing evidence that imposing a lesser sentence would endanger public safety.

Second, the court must apply the sentencing rules of the Judicial Council and apply any other changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing.

Third, the court may consider postconviction factors that speak to whether continued incarceration remains in the interest of justice, such as the defendant’s physical condition and records of discipline and rehabilitation while incarcerated.

Finally, unless the court originally imposed the upper term, the court may not impose a sentence exceeding the middle term unless there are circumstances in aggravation that justify the imposition of a term of imprisonment exceeding the middle term, and those facts have been stipulated to by the defendant, or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial.

Authority:

PEN 1172.75

Third Holding:

A trial court has the authority to exercise its discretion under section 1385(a) and Romero to strike any or all of a defendant’s strike priors after recalling his sentence and for the purposes of resentencing him under section 1172.75. As the court in Rogers explained, because a trial court’s power under section 1385(a) to dismiss or strike a strike prior is independent of either the Three Strikes law or the subsequent Three Strikes Reform Act of 2012, any exercise of that power at a resentencing proceeding under section 1172.75 does not offend either.

Authority:

People v. Superior Court (Romero) (1996) 13 Cal.4th 497

People v. Rogers (2025) 108 Cal.App.5th 340, 362, 364

Fourth Holding:

Where, as here, a trial court sentences a defendant without being aware of the full scope of its sentencing discretion, remand is required to allow the court to fully exercise that discretion unless the record clearly indicates that the court would have reached the same decision had it been aware of the scope of its discretion.

Authority:

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

Racial Justice Act, Standard of review

Case 000609

Posted on by Gary McCurdy

Error and/or relief

The trial court applied improper legal standards in denying the defendant’s renewed new trial motion under the Racial Justice Act (RJA) and his request for RJA discovery.

First Holding:

In enacting Penal Code section 745, effective 1/1/2021, the Legislature sought to eliminate racial bias from California’s criminal justice system, declaring that racism—whether intentional or implicit—at any stage of a criminal case undermines fairness and constitutes a miscarriage of justice under the state Constitution. The statute is designed not to punish bias but to remedy its impact on defendants and the judicial process, ensuring that race plays no role in obtaining convictions or imposing sentences and rejecting the premise that racial disparities in the system are unavoidable. The following year, the Legislature amended subdivision (j) to provide the RJA applies to all cases where the judgment is not final.

Authority:

PEN 745

Second Holding:

The RJA identifies four categories of conduct, any one of which, if proved, is sufficient to establish a violation of Penal Code section 745, subdivision (a). In the renewed motion, the defendant relied on section 745(a)(1) and (2), which permit a defendant to establish a RJA violation by a preponderance of the evidence where:

(1) The judge, an attorney in the case, a law enforcement officer involved in the case, an expert witness, or juror exhibited bias or animus towards the defendant because of the defendant’s race, ethnicity, or national origin; or

(2) During the defendant’s trial, in court and during the proceedings, the judge, an attorney in the case, a law enforcement officer involved in the case, an expert witness, or juror, used racially discriminatory language about the defendant’s race, ethnicity, or national origin, or otherwise exhibited bias or animus towards the defendant because of the defendant’s race, ethnicity, or national origin, whether or not purposeful.

(Paragraph (2) does not apply if the person speaking is relating language used by another that is relevant to the case or if the person speaking is giving a racially neutral and unbiased physical description of the suspect.)

Section 745 defines racially discriminatory language.

Authority:

PEN 745

Young v. Superior Court (2022) 79 Cal.App.5th 138, 147

Third Holding:

A defendant alleging an RJA violation must first make a prima facie showing in the trial court—i.e., present facts that, if true, demonstrate a substantial likelihood of a violation. This standard falls between a mere possibility and a preponderance of the evidence. At this stage, the court must accept the defendant’s factual allegations as true, including expert and statistical evidence, unless they are conclusory, unsupported, or contradicted by the record.

The trial court may not weigh competing evidence or make credibility determinations, except in the rare circumstances where the record irrefutably establishes the allegations are false. If the trial court determines a defendant has made a prima facie showing, it must conduct an evidentiary hearing where it may consider evidence and arguments submitted by the People, make credibility determinations, and weigh the evidence.

Authority:

Finley v. Superior Court (2023) 95 Cal.App.5th 12, 22-23, 25

Fourth Holding:

We review de novo the trial court’s legal conclusion that appellants failed to make a prima facie showing.

Authority:

People v. Howard (2024) 104 Cal.App.5th 625, 650

Fifth Holding:

The trial court concluded that the defendant failed to make a prima facie showing. The court did not find the defendant’s testimony conclusory, irrelevant, or unsupported; rather, it discounted the testimony as uncorroborated and not credible. This was error. At the prima facie stage, the defendant was not required to prove the truth of his account; he was required only to show that, if true, the facts alleged would establish a violation.

The court further erred by proceeding with a prejudice analysis—reasoning that, even if the jury heard the introduction of the rap lyrics, the verdicts would not have changed and no miscarriage of justice occurred. But prejudice is not part of the prima facie inquiry. The question is solely whether the defendant satisfied his initial minimal burden to produce facts that, if true, establish that there is more than a mere possibility of an RJA violation. Applying de novo review, we conclude that the defendant met his minimal burden to allege facts that, if true, establish more than a mere possibility of an RJA violation.

Authority:

People v. Howard (2024) 104 Cal.App.5th 625, 656

Sixth Holding:

The court erred in denying the defendant’s motion for RJA discovery. He provided some data in support of his motion. The showing required to establish a plausible factual foundation for discovery under the RJA is minimal. At the request for discovery stage a court need not determine whether a violation under Penal Code section 745(a) may ultimately be established or ruled out. The dispositive question is whether a defendant demonstrated a plausible factual foundation for any potential RJA violation sufficient to show good cause.

Authority:

Gonzales v. Superior Court (2024) 108 Cal.App.5th Supp. 36

McDaniel v. Superior Court (2025) 111 Cal.App.5th 228, 244

Young v. Superior Court (2022) 79 Cal.App.5th 138

Seventh Holding:

We review the trial court’s discovery order for abuse of discretion, because management of discovery lies within the sound discretion of the trial court. The RJA was designed to facilitate the exposure and evaluation of potential racial bias, not to erect insurmountable barriers at the discovery stage. By requiring more than a plausible factual showing and prematurely invoking additional discovery constraints, the trial court applied a framework that unduly restricted access to potentially probative evidence. Because the trial court’s ruling rested on erroneous legal premises, its denial of discovery constitutes an abuse of discretion.

Authority:

Young v. Superior Court (2022) 79 Cal.App.5th 138, 156