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Discretion, Standard of review

Case: 000371

Posted on by Gary McCurdy

Error and/or relief

The trial court improperly denied the defendant’s request for pretrial mental health diversion under Penal Code section 1001.36 by applying the wrong standard in determining that he did not satisfy the statute’s public safety requirement. Accordingly, we conditionally reverse the judgment and remand to the trial court.

First Holding:

A trial court may grant a defendant pretrial mental health diversion if the defendant has a qualifying mental health disorder. The court has discretion to grant pretrial diversion if the defendant satisfies the eligibility requirements for pretrial diversion set forth in the statute and the court finds that the defendant is suitable for that diversion under the factors set forth in the statute. A defendant is eligible for pretrial diversion if (1) the defendant has been diagnosed with a qualifying mental disorder; and (2) the defendant’s mental disorder was a significant factor in the commission of the charged offense.

Authority:

PEN 1001.36

People v. Frahs (2020) 9 Cal.5th 618, 626–627

Second Holding:

For any defendant who satisfies the eligibility requirements, the court must then find the defendant is suitable for pretrial diversion if all the following criteria are met: (1) In the opinion of a qualified mental health expert, the defendant’s symptoms of the mental disorder causing, contributing to, or motivating the criminal behavior would respond to mental health treatment; (2) The defendant consents to diversion and waives the defendant’s right to a speedy trial; (3) The defendant agrees to comply with treatment as a condition of diversion; (4) The defendant will not pose an unreasonable risk of danger to public safety, as defined in section 1170.18, if treated in the community.

Authority:

PEN 1001.36(c)

Third Holding:

Section 1170.18, in turn, defines “unreasonable risk of danger to public safety” as an unreasonable risk that the petitioner will commit a new violent felony within the meaning of section 667(e)(2)(C)(iv). Thus, a trial court must determine whether the defendant is likely to commit an offense known colloquially as a “super strike.” Qualifying super strikes include murder, attempted murder, solicitation to commit murder, assault with a machine gun on a police officer, possession of a weapon of mass destruction, and any serious or violent felony punishable by death or life imprisonment.

Authority:

PEN 1170.18(c)

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

People v. Whitmill (2022) 86 Cal.App.5th 1138, 1149, 1150-1151

People v. Bunas (2022) 79 Cal.App.5th 840, 851, fn. 11

Fourth Holding:

Mental health diversion is discretionary, not mandatory, even if all the requirements are met. But this residual discretion must be exercised consistently with the principles and purpose of the law, which 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.

Authority:

PEN 1001.36(a)

PEN 1001.35

People v. Gerson (2022) 80 Cal.App.5th 1067, 1080

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

Fifth Holding:

We review a trial court’s ruling on a petition for pretrial mental health diversion for abuse of discretion. A court abuses its discretion when it makes an arbitrary or capricious decision by applying the wrong legal standard, or bases its decision on express or implied factual findings that are not supported by substantial evidence.

Authority:

People v. Whitmill (2022) 86 Cal.App.5th 1138, 1147

People v. Moine (2021) 62 Cal.App.5th 440, 448–449

Sixth Holding:

The trial court’s comments, coupled with the fact the court did not expressly find a likelihood that the defendant would commit a super strike, suggest the court was expanding the meaning of “public safety” in section 1001.36 beyond the likelihood that the defendant will commit a limited subset of violent felonies. This was improper.

Authority:

People v. Moine (2021) 62 Cal.App.5th 440, 450

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 896–897 [trial courts cannot create an alternative meaning of ‘public safety’ inconsistent with sec. 1001.36(c)(4)]

Seventh Holding:

We do not find the Watson standard of prejudice applicable here. Under the Watson test, an error is harmless unless it is reasonably probable the outcome would have been different in the absence of the error. The Watson standard is appropriate in circumstances where the trial court understood the nature of its discretion but, for example, relied on an improper factor in exercising that discretion or failed to state its reasoning. It does not apply where the court was unaware of the extent of its lawful authority in a particular context, because determining what choice the trial court is likely to make in the first instance is far more speculative.

Because the record suggests the trial court did not understand that its discretion in deciding the defendant’s motion was constrained by section 1001.36’s narrow definition of public safety, we cannot be confident that the court was aware of the scope of its discretion under section 1001.36. Defendants are entitled to decisions made in the exercise of the informed discretion” of the court. A court that is unaware of the scope of its discretionary powers cannot exercise that informed discretion. The appropriate remedy in such circumstances is to remand unless the record clearly indicates that the trial court would have reached the same conclusion even if it had been aware that it had such discretion. The Watson standard is thus inapplicable.

Authority:

People v. Watson (1956) 46 Cal.2d 818, 836

People v. McDaniels (2018) 22 Cal.App.5th 420, 426

In re F.M. (2023) 14 Cal.5th 701, 716

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

People v. Doron (2023) 95 Cal.App.5th 1, 9–10 [concluding remand was required under Gutierrez where trial court did not apply correct standard in denying defendant’s motion for mental health diversion]

People v. Lynch (2024) 16 Cal.5th 730, 774 [Gutierrez standard applied where trial court was unaware that its discretion to select a prison sentence was constrained by a presumption against the upper term]

Amelioration, Appellate Principles, Retroactivity, Sentencing

Case: 000370

Posted on by Gary McCurdy

Error and/or relief

It was error for the trial court to deny the defendant’s second petition for recall of sentence under section 1172.6 as successive, because there were changes in the statutory law between the first and the second. Remanded for the court’s consideration of the second petition.

Holding:

The defendant maintains that changes in statutory and decisional law after the denial of his first resentencing petition dictate that it not be accorded preclusive effect. On the merits, he argues that the jury’s verdict does not conclusively establish he is ineligible for relief as a matter of law. Asserting that his conviction for first degree murder may have been based on the felony murder rule, he contends he has made a prima facie case for relief and is entitled to an evidentiary hearing. The Attorney General appropriately concedes error.

Because there were several applicable changes to the law since the denial of appellant’s first petition, the second petition was not barred under principles of collateral estoppel. These include amendments to the statute limiting reliance on a prior appellate opinion to the procedural history of the case and providing that substantial evidence to support a murder conviction is insufficient to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing. Further, caselaw has clarified that at the prima facie stage, a trial court must not engage in factfinding involving the weighing of evidence or the exercise of discretion.

Authority:

PC 1172.6(d)(3)

People v. Jimenez (2024) 103 Cal.App.5th 994, 1005

People v. Harden (2022) 81 Cal.App.5th 45, 52

People v. Lewis (2021) 11 Cal.5th 952, 972

Abstracts and Minutes, Duty of the court, Fines and fees, Sentencing

Case: 000369

Posted on by Gary McCurdy

Error and/or relief

The trial court prejudicially erred in failing to conduct a full resentencing. The court erred in its calculation of custody credits, both as to postsentence conduct credits and credits for days in actual custody. The abstract of judgment should be corrected to reflect the oral pronouncement of judgment as to the restitution fines and the victim restitution order.

First Holding:

When a defendant is convicted of an offense, a sentencing court has a duty to render judgment and impose the penalty authorized by law. Judgment is rendered when the trial court orally pronounces sentence. In rendering the judgment, the court must pronounce sentence on each count for which the defendant sustained a conviction. The failure to pronounce a sentence for each conviction results in an unauthorized sentence that can be corrected at any time.

Authority:

PEN 12

People v. Martinez (2015) 240 Cal.App.4th 1006, 1012

People v. Karaman (1992) 4 Cal.4th 335, 344, fn. 9

People v. Codinha (2023) 92 Cal.App.5th 976, 994

People v. Price (1986) 184 Cal.App.3d 1405, 1411, fn. 6

Second Holding:

At the resentencing hearing following our remand in the earlier appeal, the trial court addressed only the errors we identified in our opinion. Our remand order was not so limited. It was for a full resentencing.

Authority:

People v. Smith (1985) 166 Cal.App.3d 1003, 1008, abrogated on another ground by People v. Bullock (1994) 26 Cal.App.4th 985

Third Holding:

The trial court’s statements suggest a fundamental misunderstanding of the effect of our order vacating the defendant’s sentence and remanding for a full sentencing, which was the nullification of the previous sentence. Because the prior sentence no longer existed, the court had to construct an entirely new sentence. By failing to orally pronounce a sentence on the nine counts for which it stayed the sentences at the original sentencing, the court failed to render judgment on all of the defendant’s convictions, resulting in an unauthorized sentence. When the trial court stated it was excluding counts it had previously stayed under section 654, the trial court used the term concurrent in connection with section 654. But where section 654 applies, it precludes any multiple punishment, consecutive or concurrent.

Authority:

People v. Rouse (2016) 245 Cal.App.4th 292, 297

People v. Price (1986) 184 Cal.App.3d 1405, 1411, fn. 6

People v. Codinha (2023) 92 Cal.App.5th 976, 994

People v. Deloza (1998) 18 Cal.4th 585, 594

Fourth Holding:

Generally, when an unauthorized sentence is discovered on appeal, a reviewing court affirms the defendant’s conviction and remands the case for the trial court to pronounce a sentence consistent with the verdict.

Authority:

People v. Taylor (1971) 15 Cal.App.3d 349, 353

Fifth Holding:

Our order for a full resentencing necessarily encompasses calculating the defendant’s custody credits and the appropriate assessments, fines, and restitution awards. When it resentenced the defendant, the trial court was required to credit her with all actual days she had spent in custody up to that time, including time in custody after the original sentencing.

Authority:

PEN 2900.1

People v. Valenzuela (2019) 7 Cal.5th 415, 424-425

People v. Buckhalter (2001) 26 Cal.4th 20, 37

Sixth Holding:

A trial court is required to include all aspects of a judgment in its oral pronouncement. That includes fines and direct victim restitution. The clerk cannot supplement the judgment the court actually pronounced by adding a provision to the minute order and the abstract of judgment. Upon a defendant’s request, the trial court must hold a hearing on the defendant’s ability to pay before imposing ancillary costs, like the court operations assessment (sec. 1465.8(a)(1)) and the court facilities assessment (Gov. Code, sec. 70373).

Authority:

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

People v. Zackery (2007) 147 Cal.App.4th 380, 387-388

People v. Rowland (1997) 51 Cal.App.4th 1745, 1751

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

Amelioration, Sentencing

Case: 000368

Posted on by Gary McCurdy

Error and/or relief

The defendant was sentenced to LWOP in the 1980s for his murder and robbery conviction. In a 2022 resentencing hearing under section 1172.75, the superior court declined to resentence the defendant because of prior convictions for sexually violent offenses that made him ineligible. The court erred, as the prior prison term enhancement subjection to review under section 1172.75 was based on escape, not on his prior sexually violent offenses. His prior sexually violent offenses were not a basis to render him ineligible for resentencing.

First Holding:

Defendant’s prior prison term enhancement was imposed based on a conviction for escape, which is not a sexually violent offense as defined in Welfare and Institutions Code section 6600(b) Thus, the enhancement was not imposed for a prior conviction for a sexually violent offense under section 1172.75(a).

Authority:

PEN 1172.75(a)

WIC 6600(b)

People v. Green (2024) 104 Cal.App.5th 365, 370-373

Second Holding:

Under section 1172.75(f), commencing on January 1, 2025, an individual who has been convicted of a sexually violent offense as defined in Welfare and Institutions Code section 6600(b) 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. This subdivision does not apply retroactively. But the defendant’s sentence was reviewed in 2022, and by its terms the section 1172.75(f) restriction is not retroactive. The disqualification does not apply to the defendant.

Authority:

PEN 1172.75(f)

Abstracts and Minutes

Case: 000367

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment in the defendant’s case erroneously includes enhancements that the superior court struck when it resentenced the defendant.

First Holding:

In a criminal case, judgment is rendered when the trial court orally pronounces sentence.

Authority:

People v. Karaman (1992) 4 Cal.4th 335, 344, fn. 9

Second Holding:

The transcript of the resentencing proceeding affirmatively shows that the court did not impose either a gun or a firearm enhancement in connection with the LWOP sentences. Additionally, the transcript of the earlier proceeding shows that the court’s failure to mention the enhancements was not by accident because it considered any enhancements on the LWOP counts to be irrelevant. Despite the court’s striking of the enhancements, the abstract of judgment reflects that the court imposed the same enhancements included in the 2015 sentence under sections 186.22(b)(1) and 12022.53(b) and (c). It is well settled that an abstract of judgment is not the judgment of conviction. It does not control if different from the trial court’s oral judgment and may not add to or modify the judgment it purports to digest or summarize. When an abstract of judgment does not reflect the actual sentence imposed in the trial judge’s verbal pronouncement, this court has the inherent power to correct such clerical error on appeal

Authority:

People v. Jones (2012) 54 Cal.4th 1, 89