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Case Summaries

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Discretion, Standard of review

Case 000661

Posted on by Gary McCurdy

Error and/or relief

The trial court applied an improper legal standard when determining whether the defendant was eligible for mental health diversion, made findings regarding his eligibility that were not supported by the evidence, and failed to provide a basis for the exercise of its residual discretion to deny his motion. We accordingly conditionally reverse the judgment and remand for further proceedings on the defendant’s motion for mental health diversion.

First Holding:

Section 1001.36 states that a trial court may, in its discretion, and after considering the positions of the defense and prosecution, grant pretrial diversion to a defendant pursuant to this section if the defendant satisfies the eligibility requirements for pretrial diversion set forth in subdivision (b) and the court determines that the defendant is suitable for that diversion under the factors set forth in subdivision (c).

Authority:

PEN 1001.36(a)

Second Holding:

The statute identifies two eligibility requirements: (1) in the last five years the defendant has been diagnosed with or treated for “a mental disorder as identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders, including, but not limited to, bipolar disorder, schizophrenia, schizoaffective disorder, or post-traumatic stress disorder, but excluding antisocial personality disorder and pedophilia” (§ 1001.36, subd. (b)(1)); and (2) the defendant’s mental disorder was a significant factor in the commission of the charged offense.

Authority:

PEN 1001.36(b)(2)

Third Holding:

The statute identifies four suitability criteria: (1) a qualified mental health expert has opined that 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 (if mentally competent) consents to diversion and waives the right to a speedy trial; (3) the defendant (if mentally competent) agrees to comply with treatment as a condition of diversion; and (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:

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 1001.36f)(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.

Authority:

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

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

Fifth 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

Sixth Holding:

We review a trial court’s ruling on 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. Graham (2024) 102 Cal.App.5th 787, 795

Seventh Holding:

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.

When reviewing a finding that a fact has been proved by clear and convincing evidence, the question before the appellate court is 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. The issue before us is whether the record as a whole contains substantial evidence from which a reasonable factfinder could have found it highly probable that the defendant’s mental disorder was not a motivating factor, causal factor, or contributing factor to his involvement in the alleged offense.

Authority:

PEN 1001.36(b)

Conservatorship of O.B. (2020) 9 Cal.5th 989, 1011

Lacour v. Superior Court (2025) 110 Cal.App.5th 391, 402

Eighth Holding:

Reviewing courts have consistently made clear that the legislation’s aim is for diversion to apply as broadly as possible so as to increase the provision of mental health treatment for the betterment of individuals and society as a whole. “A trial court’s denial of mental health diversion using its residual discretion should be limited to those situations where the purposes of the statute would not be achieved.”

Authority:

People v. Cabalar (2025) 117 Cal.App.5th 41, 58

Vaughn v. Superior Court (2024) 105 Cal.App.5th 124, 138

Abstracts and Minutes

Case 000660

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment must be correct to reflect the crime of which the defendant was convicted.

Holding:

The abstract of judgment states, correctly, that the defendant was convicted of violating section 236, but it incorrectly describes this crime as kidnapping for ransom resulting in bodily harm or death. Section 236 actually refers to the crime of false imprisonment, and it was this offense for which the defendant was convicted. An abstract of judgment is not the judgment of conviction, and it is important for courts to correct elements of an abstract of judgment that differ from the court’s oral judgment.

Authority:

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

Sentencing, Sixth Amendment

Case 000659

Posted on by Gary McCurdy

Error and/or relief

The court erred by finding true and relying on aggravating circumstances at sentencing without any waiver of the right to jury trial.

First Holding:

Despite the absence of a jury waiver, the court at sentencing found true multiple of the charged aggravating circumstances. The court also imposed the upper term of 10 years for the Penal Code section 12022.5(a) firearm enhancement. The trial court erred by imposing this upper term sentence based on aggravating circumstances that were not stipulated to by the defendant found true beyond a reasonable doubt at trial by the jury, or found true by the judge in a court trial after a waiver of the right to jury trial.

Under the Sixth Amendment, any fact, beyond the bare fact of a prior conviction, that exposes a defendant to harsher punishment, must be found by a jury beyond a reasonable doubt, unless the defendant stipulates to its truth or waives a jury trial.

Authority:

PEN 1170(b)(2)

People v. Wiley (2025) 17 Cal.5th 1069, 1084

Second Holding:

Several of the aggravating circumstances found true by the trial court were based on what the Supreme Court in Lynch referred to as a somewhat vague or subjective standard. These include that the crime involved great violence, great bodily harm, and other acts showing a high degree of cruelty, viciousness, and callousness and that Guy had engaged in violent conduct that indicates a serious danger to society.

Because these aggravating circumstances are inherently subjective and imprecise, we cannot conclude beyond a reasonable doubt that a jury would have found true all of the aggravating factors relied upon by the trial court to justify an upper term sentence. Moreover, the court could not lawfully have imposed the upper term on the Penal Code section 12022.5(a) enhancement without proper true findings or a stipulation to the truth of circumstances in aggravation that justified the imposition of a term of imprisonment exceeding the middle term.

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 768–769, 775–776

Third Holding:

We will therefore vacate the sentence and remand for a full resentencing hearing.

Authority:

People v. Buycks (2018) 5 Cal.5th 857, 893 [full resentencing on all counts required when part of sentence is stricken on appeal]

Abstracts and Minutes, Appellate Principles, Fines and fees, Sentencing, Standard of review

Case 000658

Posted on by Gary McCurdy

Error and/or relief

It was an improper delegation of authority to impose a condition of probation that left it up to the probation officer to decide whether treatment should be residential or outpatient. There was also error regarding imposition of fees.

First Holding:

Though the defendant did not object to the condition at the time, the issue is not forfeited on appeal. His claim is cognizable because it is a facial constitutional challenge presenting a pure question of law that does not depend on the underlying factual record. We thus address defendant’s constitutional challenge on the merits, which we review de novo.

Authority:

People v. Smith (2022) 79 Cal.App.5th 897, 901 [a facial constitutional challenge may be considered for the first time on appeal because it does not depend on the underlying factual record]

In re Sheena K. (2007) 40 Cal.4th 875, 884–886

Second Holding:

Under the separation of powers doctrine, judicial powers may not be delegated to nonjudicial officers. While the probation officer may properly specify the details necessary to effectuate the court’s probation conditions, it is the court’s duty to determine the nature of the requirements imposed on the probationer.

A court may dictate the basic policy of a condition of probation, leaving specification of details to the probation officer, but the court’s order cannot be entirely open-ended. It is for the court to determine the nature of the prohibition placed on a defendant as a condition of probation. By leaving key determinations to be decided ad hoc, a vague probation condition may result in an impermissible delegation of authority to the probation officer.

Authority:

Cal. Const., art. III, sec. 3

People v. Smith (2022) 79 Cal.App.5th 897, 902

In Victor L. (2010) 182 Cal.App.4th 902, 919

Third Holding:

A condition requiring the defendant to enter a residential drug treatment program but authorizing probation to select which residential program may be upheld. We remand for the trial court to either strike the condition, or modify it to specify the type of treatment program in which defendant is directed to participate, including whether it requires defendant to undergo residential treatment. The court’s decision may be informed by the results of any assessment and additional information provided by the parties.

Authority:

People v. Penoli (1996) 46 Cal.App.4th 298, 307–308

People v. Smith (2022) 79 Cal.App.5th 897, 903, 905,

People v. O’Neil (2008) 165 Cal.App.4th 13

Fourth Holding:

Appellants implicitly concede a respondent’s argument by failing to respond in their reply brief to the respondent’s argument on that point. A court may assume respondent’s claim was correct if the defendant did not dispute respondent’s claim in his reply.

Authority:

Rudick v. State Bd. of Optometry (2019) 41 Cal.App.5th 77, 89–90

Reygoza v. Superior Court (1991) 230 Cal.App.3d 514, 519 and fn. 4

Fifth Holding:

An order of probation, like an abstract of judgment, must specify the statutory basis of each fine or fee imposed.

Authority:

People v. Eddards (2008) 162 Cal.App.4th 712, 716

Sixth Holding:

In general costs of prosecuting and rehabilitating criminals are not recoverable absent express statutory authority to the contrary. The Legislature repealed section 1203.1b (which authorized to court to impose an order for the cost of probation services, depending on ability to pay, and it could not be a condition of probation) and enacted section 1465.9, which states in relevant part, that on after July 1, 2021, the balance of any court-imposed costs pursuant to section 1203.1b [among numerous other statutes] shall be unenforceable and uncollectible and any portion of a judgment imposing those costs shall be vacated.

Authority:

PEN 1465.9

People v. Baker (1974) 39 Cal.App.3d 550, 559–560

Seventh Holding:

The abstract of judgment contains an error. It states that the jury found true the enhancement for great bodily injury under section 12022.7. This conflicts with the actual oral statement of the judge (who conducted a court trial on the enhancement), in which the judge stated “I am not going to find true the allegation of great bodily injury.”

Where, as here, discrepancies exist between the court’s oral pronouncement of judgment and the minute order, the oral pronouncement controls. The trial court should thus modify the probation order to conform to its oral pronouncement.

Authority:

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

Discretion, Sentencing, Sufficiency of and substantial evidence

Case 000657

Posted on by Gary McCurdy

Error and/or relief

The court erred in denying the medically eligible defendant’s petition for compassionate release under section 1172.2, because there was insufficient evidence to support the court’s finding that there was an unreasonable risk that the defendant would commit a super strike.

First Holding:

The Penal Code imposes a presumption favoring compassionate release for medically-eligible individuals and, as to the risk of re-offense, requires an assessment not of whether a new crime would be theoretically possible, but whether there would be an unreasonable risk of a super strike as defined by the law. On this record, we conclude there is insufficient evidence of an unreasonable risk that defendant would commit a super strike if granted compassionate release. Accordingly, we will reverse the trial court’s order denying the petition for compassionate release and direct the trial court to recall defendant’s sentence in accordance with section 1172.2.

Authority:

PEN 1172.2

Second Holding:

A superior court abuses its discretion when the factual findings essential to its decision lack evidentiary support. The superior court’s factual findings are reviewed for substantial evidence.

Authority:

People v. Cluff (2001) 87 Cal.App.4th 991, 998

In re White (2020) 9 Cal.5th 455, 470

Third Holding:

Section 1172.2 authorizes a trial court to recall the sentence of an incarcerated person who is permanently medically incapacitated with a medical condition or functional impairment that renders them permanently unable to complete basic activities of daily living. If the trial court finds that an incarcerated person satisfies this criterion, the statute establishes a presumption favoring recall and resentencing that may only be overcome if a court finds the defendant is an unreasonable risk of danger to public safety, as defined in subdivision section 1170.18(c), based on the incarcerated person’s current physical and mental condition.

Authority:

PEN 1172.2(b)(2)

Fourth Holding:

Under section 1170.18(c), an unreasonable risk of danger to public safety is an unreasonable risk that the petitioner will commit a “super strike,” which includes any homicide or attempted homicide offense, any serious or violent felony offense punishable by life imprisonment or death, and certain sexually violent offenses.

Authority:

PEN 1170.18(c)

Fifth Holding:

After reviewing the evidence of the physical and mental condition of the defendant, the court concluded that there was insufficient evidence to support the finding that he was capable of committing a super strike. The appellate court relied on Lewis, a case in which it was held to be an abuse of discretion to deny compassionate release on evidence that showed that the defendant perhaps had the capacity to commit a super strike, but that did not necessarily establish an unreasonable risk that he would commit such an offense.

Authority:

People v. Lewis (2024) 101 Cal.App.5th 401, 407-409