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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

Duty of counsel, Effective assistance of counsel, Sentencing

Case 000616

Posted on by Gary McCurdy

Error and/or relief

The judgment is affirmed as to all verdicts and findings made at trial, but the sentence is vacated and the cause is remanded for a new sentencing hearing. The defendant’s attorney’s assistance was ineffective by counsel’s failure to argue a statutory mitigatory factor at the sentencing hearing.

First Holding:

When an enhancement is pleaded and proven, the sentencing court is ordinarily presented with a binary choice: impose the additional punishment or strike/dismiss the enhancement.

Section 1385(c) provides, in pertinent part, that notwithstanding any other law, the court shall dismiss an enhancement if it is in the furtherance of justice to do so, except if dismissal of that enhancement is prohibited by any initiative statute.

In exercising that discretion, section 1385 lays out nine factors in mitigation for the court to consider and afford great weight to. Proof of one or more of the listed circumstances weighs greatly in favor of dismissing the enhancement, in the absence of a finding that dismissal would endanger public safety.

One of the listed circumstances (1385(c)(2)(B)) is “Multiple enhancements are alleged in a single case. In this instance, all enhancements beyond a single enhancement shall be dismissed.” Rules of Court, rule 4.423(b)(1) mirrors that mitigation factor.

Authority:

PEN 1385(c)

People v. Lopez (2004) 119 Cal.App.4th 355, 364

Second Holding:

If the sentencing court does not conclude that dismissal would endanger public safety, then mitigating circumstances strongly favor dismissing the enhancement. This means that, absent a danger to public safety, the presence of an enumerated mitigating circumstance will generally result in the dismissal of an enhancement unless the sentencing court finds substantial, credible evidence of countervailing factors that may nonetheless neutralize even the great weight of the mitigating circumstance, such that dismissal of the enhancement is not in furtherance of justice.

Authority:

People v. Walker (2024) 16 Cal.5th 1024, 1036

Third Holding:

A defense attorney who fails to adequately understand the available sentencing alternatives, promote their proper application, or pursue the most advantageous disposition for his client may be found incompetent.

Authority:

People v. Scott (1994) 9 Cal.4th 331, 350

Fourth Holding:

To establish ineffective assistance of counsel, a defendant must show that (1) counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel’s deficient performance was prejudicial.

Reviewing courts must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance because it is all too easy to conclude that a particular act or omission of counsel was unreasonable in the harsh light of hindsight.

Because the presumption of counsel’s competence can typically be rebutted only with evidence outside the record, ineffective assistance claims are normally raised in habeas corpus proceedings where such evidence can be presented. Defendants who present IAC claims on direct appeal bear a heavy burden. If the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged, the claim must be rejected unless counsel was asked for an explanation and failed to provide one, or there simply could be no satisfactory explanation.

Put differently, where counsel’s trial tactics or strategic reasons for challenged decisions do not appear on the record, we will not find ineffective assistance of counsel on appeal unless there could be no conceivable reason for counsel’s acts or omissions.

Authority:

People v. Scott (1997) 15 Cal.4th 1188, 1211

Strickland v. Washington (1984) 466 U.S. 668, 687–688, 691–692

In re Scott (2003) 29 Cal.4th 783, 811–812

People v. Arce (2014) 226 Cal.App.4th 924, 930

People v. Garcia (2022) 76 Cal.App.5th 887, 900

People v. Carter (2005) 36 Cal.4th 1114, 1189

People v. Weaver (2001) 26 Cal.4th 876, 926

Fifth Holding:

Defendant’s trial counsel did not file any sentencing memoranda. Assuming counsel was aware of the relevant sentencing laws concerning multiple enhancements, counsel nevertheless failed to promote their proper application and pursue the most advantageous disposition for his client. Counsel also failed to object to the erroneous contention in the probation report, and in the prosecutor’s argument at sentencing, that there were no mitigating circumstances. There is no conceivable strategic or tactical explanation for counsel’s omissions.

Authority:

People v. Scott (1994) 9 Cal.4th 331, 351

Sixth Holding:

When a stay of punishment is required under section 654, a trial court has discretion to choose which count will serve as the principal term without regard to the longest potential term of imprisonment. Here, the court stated its intention to use count 1 as the principal term before defense counsel presented his arguments at the sentencing hearing. The attorney was thus aware defendant’s prison term would be based on the offense that included two enhancement findings.

We are unable to conceive of a rational, tactical reason for counsel’s failure to request the dismissal of at least one enhancement pursuant to section 1385(c)(2)(B).

Authority:

People v. Caparaz (2022) 80 Cal.App.5th 669, 688, citing sec. 654(a), as amended by AB 518 (2021–2022 Reg. Sess.)

Seventh Holding:

Counsel alluded to the defendant’s childhood trauma, but only in a passing reference to the diagnosis mentioned in the probation report. He made no effort to link that potential mitigating circumstance to the offense. As made plain by the statutory text, the mere fact a defendant has suffered past trauma is insufficient—such trauma must be a contributing factor in the commission of the offense for the low term presumption to apply.

Authority:

People v. Knowles (2024) 105 Cal.App.5th 757, 765

Eighth Holding:

In the context of appellate representation, where appellate counsel fails to raise a significant and obvious issue, the failure will generally be considered deficient performance under Strickland if the missed issue is clearly stronger than those presented. Similar reasoning can be applied to the performance of defendant’s trial counsel at sentencing. Advocating for dismissal of an enhancement under section 1385(c)(2)(B) would have been an objectively stronger argument, by a wide margin, than the generalized request for leniency based on defendant’s educational achievements.

Authority:

In re Hampton (2020) 48 Cal.App.5th 463, 477

Ninth Holding:

Objections can be made during and even after the formal pronouncement of judgment. Once it became clear the court was imposing the middle term, defense counsel had nothing to lose by pointing out the applicability of section 1385(c)(2)(B). At the very least, doing so would have preserved the issue for appellate review.

Failure to present any objections or argument regarding section 1385 fell below the minimum standards of performance required of a defense attorney.

Authority:

People v. Gonzalez (2003) 31 Cal.4th 745, 755

People v. Steele (2000) 83 Cal.App.4th 212, 226 [finding forfeiture where defendant did not object either before or after pronouncement of sentence, despite the opportunity to do so]

Tenth Holding:

Prejudice flowing from ineffective assistance is established by showing there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. The burden requires more than speculation as to the effect of the errors or omissions of counsel. A reasonable probability is a probability sufficient to undermine confidence in the outcome.

Authority:

Strickland v. Washington (1984) 466 U.S. 668, 694

People v. Williams (1988) 44 Cal.3d 883, 937

Amelioration, Elements of crime, Sentencing

Case 000615

Posted on by Gary McCurdy

Error and/or relief

The defendant appeals an order partially denying her request for resentencing under Penal Code section 1172.75. We reverse the order because she was entitled to have the court consider her eligibility for ameliorative relief under changes to the former version of section 186.22 (under which she had been convicted) made by AB 333.

First Holding:

The defendant’s judgment became nonfinal when she returned to the trial court under section 1172.75 for recall and resentencing. Section 1172.75 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.

Once the trial court verifies the current judgment includes the enhancement, the court shall recall the sentence and resentence the defendant. When resentencing the defendant, the court shall 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.

By the plain language of the statute, the defendant was entitled to be considered for any legislative enactments that might provide for a reduction of sentence.

Authority:

PEN 1172.75

People v. Saldana (2023) 97 Cal.App.5th 1270, 1276

Second Holding:

In the criminal law context, when ameliorative legislation goes into effect, we generally presume the Legislature intends the benefits of the new enactment to apply as broadly as constitutionally permissible to all nonfinal cases. For purposes of Estrada, the test for finality is whether the criminal prosecution or proceeding as a whole is complete.

The meaning of finality in the Estrada context is distinct from the issue of whether a judgment is final for purposes of appealability. In the context of recall and resentencing, a granting of a petition for resentencing renders a conviction nonfinal for purposes of retroactive application of ameliorative legislation.

Authority:

In re Estrada (1965) 63 Cal.2d 740, 745

People v. Esquivel (2021) 11 Cal.5th 671, 679

People v. Lopez (2025) 17 Cal.5th 388, 392-393

People v. Trent (2025) 112 Cal.App.5th 251 [defendant entitled to retroactive application of Assembly Bill No. 333 upon resentencing under section 1172.6 based on changes to felony murder rule]

People v. Keel (2022) 84 Cal.App.5th 546, 551 [defendant entitled to retroactive application for Proposition 57 and Senate Bill No. 1391 (2017–2018 Reg. Sess.) upon resentencing pursuant to section 1172.6]

Third Holding:

In 2021, the Legislature passed AB 333, enacting the STEP Forward Act of 2021. AB 333 made several changes to the law on gang enhancements.

First, it substantively narrowed the definition of a criminal street gang.

Second, it also changed former subdivision (f)’s requirement that a gang’s members individually or collectively engage in a pattern of criminal activity in order to constitute a criminal street gang to now require that any such pattern be collectively engaged in by members of the gang.

Third, it also narrowed the definition of a pattern of criminal activity by requiring that (l) the last offense used to show a pattern of criminal gang activity occurred within three years of the date that the currently charged offense is alleged to have been committed; (2) the offenses were committed by two or more gang members, as oppose to just persons; (3) the offenses commonly benefitted a criminal street gang; and (4) the offenses establishing a pattern of gang activity must be ones other than the currently charged offense.

Fourth, it narrowed what it means for an offense to have commonly benefitted a street gang, requiring that any common benefit be more than reputational. The defendant was entitled to the benefit of AB 333 because her judgment was not final when the court engaged in resentencing pursuant to section 1172.75

Authority:

PEN 186.22

People v. Tran (2022) 13 Cal.5th 1169, 1206

Elements of crime, Sentencing

Case 000614

Posted on by Gary McCurdy

Error and/or relief

The defendant was convicted of being a felon in possession of a firearm and a felon in possession of an assault weapon. The trial court erred in sentencing defendant separately on his firearm possession convictions and remand for resentencing consistent with section 654 to stay either one of defendant’s firearm possession convictions.

First Holding:

Section 654 provides that an act or omission that is punishable in different ways by different provisions of law may be punished under either of such provisions, but in no case shall the act or omission be punished under more than one provision. Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.

The defendant’s intent and objective are factual questions for the trial court; to permit multiple punishments, there must be evidence to support the finding the defendant formed a separate intent and objective for each offense for which he was sentenced.

Authority:

People v. Rodriguez (2009) 47 Cal.4th 501, 507,

People v. Capistrano (2014) 59 Cal.4th 830, 885, 886, overruled on other grounds in People v. Hardy (2018) 5 Cal.5th 56, 104

People v. Coleman (1989) 48 Cal.3d 112, 162

Second Holding:

These convictions arose from possession of the same weapon. Specifically, law enforcement officers found a handgun in a shoebox located in defendant’s living room, which was the basis for both firearm possession convictions. Accordingly, defendant may only be punished once for his act of possessing the handgun.

Authority:

People v. Jones (2012) 54 Cal.4th 350, 357 [a single possession or carrying of a single firearm on a single occasion may be punished only once under section 654]

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