AppellateAdvisor Law Library Background

Case Summaries

Welcome to the Appellate Advisor blog! Please feel free to scroll through the case summaries in chronological order, or search by keyword, category, or tags. It may be helpful to start with the Welcome Post.

Amelioration, Plea bargains, Sentencing

Case 000792

Posted on by Gary McCurdy

Error and/or relief

The court erred in denying the defendant’s petition for resentencing under section 1170(d), because (a) it incorrectly concluded that section 1171 barred resentencing where the original sentence was agreed on by the parties, and (b) it incorrectly believed that the parties had originally agreed to the sentence imposed. Reversed and remanded.

Because the trial court did not consider whether, despite the availability of youthful offender parole, the defendant’s determinate sentence is a de facto LWOP sentence, we leave that issue for the trial court to consider in the first instance.

First Holding:

Penal Code section 1171 [effective 1/1/2025] does not bar modification of plea agreements in resentencing. To the contrary, the section expressly authorizes modification after a plea. It states that, absent a more specific statutory rule, in a postconviction proceeding to modify a sentence pursuant to an ameliorative statute the court has jurisdiction to modify every aspect of the defendant’s sentence, including if it was imposed after a guilty plea.

The statute then provides that a plea bargain may not be rescinded based upon such modification: Any change to a sentence shall not be basis for a prosecutor or court to rescind a plea agreement. Thus, section 1171 expressly authorizes trial courts to modify sentences imposed after a plea bargain and prohibits rescission of bargains based on such modification. The trial court erred in ruling that section 1171 barred resentencing because of the defendant’s plea agreement

Authority:

PEN 1171(a), (c)(2) and (c)(3)

Second Holding:

Section 1170(d), under certain circumstances, provides for the recall and resentencing of juvenile offenders [who were tried as adults] with LWOP sentences.

(Gary note: without citation to published authority directly discussing this point, the unpublished opinion concludes that the use of the term “life without the possibility of parole” in section 1170(d) does not mention any specific statutes imposing LWOP sentences, such as section 190.5.

(This court infers from that lack of specificity that the Legislature must have intended that section 1170(d) apply whenever a candidate has received a sentence that, effectively, precludes parole in his or her lifetime. In other words, this unpublished opinion’s reasoning on this point is that section 1170(d), by its very terms, contemplates both express LWOP sentences and de facto LWOP sentences (sentences whose terms cannot be completed within a reasonable lifetime).

(The court states, “Thus, the Legislature appears to have intended section 1170(d) to be interpreted in a practical rather than technical manner to apply not only to formal LWOP sentences but also to de facto LWOP sentences that effectively render a juvenile offender ineligible for parole before they are expected to die.”

(Keep in mind that my description of this part of the holding is placed in a bracketed “Gary note,” and I may be oversimplifying and even misstating the court’s reasoning on this point. I simply thought it was an interesting approach that may prove useful.

(Also, the county’s District Attorney “invited” the Supreme Court to grant review on its own motion.  I suspect it is because the Attorney General actually represented the People in this appeal, and the DA would have had no standing to file a petition for review.  The Supreme Court has granted itself to a date in October 2026 to decide whether to grant review on its own motion.

(UPDATE OCTOBER 21, 2026:  The Supreme Court granted and held review on this case in September 2026.  “The court ordered briefing deferred pending decision in [another Supreme Court case already granted review], which presents the following issue: Is a juvenile homicide offender sentenced to 50 years to life in prison entitled to recall and resentencing under Penal Code section 1170, subdivision (d)(1) on the ground that the sentence is the functional equivalent of life imprisonment without parole?”

(I will try to follow that lead case and this case, and update when there is resolution.  I have signed up for notification on both the Court of Appeal case and the Supreme Court case once they are resolved.

(The issue on review in that other case pertains solely to functional equivalence of life without parole, and does not seem to address any impact of section 1170.1.)

Authority:

PEN 1170(d)(5)

Third Holding:

A practical interpretation of section 1170(d) is also supported by constitutional considerations. At least four Court of Appeal decisions have held that restricting resentencing under Section 1170(d) to juvenile offenders with formal LWOP sentences is irrational and violates equal protection, though others have disagreed.

Authority:

People v. Cabrera (2025) 111 Cal.App.5th 650, 653

People v. Sorto (2024) 104 Cal.App.5th 435, 450-454

People v. Bagsby (2024) 106 Cal.App.5th 1040, 1054-1061

People v. Heard (2022) 83 Cal.App.5th 608, 631-634

Contra: People v. Baldwin (2025) 113 Cal.App.5th 978, 1002-1006

Contra: People v. Thompson (2025) 112 Cal.App.5th 1058, 1075-1081, review granted Sept. 24, 2025, S292540

Fourth Holding:

Nonetheless, interpreting section 1170(d) to be limited to formal LWOP sentences plainly raises a serious constitutional question, and it is well-established that statutes should be construed to avoid constitutional questions where they are reasonably susceptible to a reasonable alternative interpretation that do not raise such questions. Accordingly, we conclude that section 1170(d) should be interpreted to apply to de facto as well as formal LWOP sentences.

Authority:

People v. Superior Court (Guevara) (2025) 18 Cal.5th 838, 862 [If a statute is susceptible of two constructions, one of which will raise serious and doubtful constitutional questions, the court will adopt the construction which, without doing violence to the reasonable meaning of the language used, will render it free from doubt as to its constitutionality.]

People v. Miracle (2018) 6 Cal.5th 318, 339 [A statute must be construed, if reasonably possible, in a manner that avoids a serious constitutional question.]

Fifth Holding:

The trial court held that the defendant was not serving a de facto LWOP sentence because he is eligible for youthful offender parole under section 3051 and, in fact, already has received a youthful offender parole hearing. We disagree. Youthful offender parole is available to all juvenile offenders with LWOP sentences, whether formal or not.

Moreover, the Legislature extended youthful offender parole hearings to juvenile offenders with LWOP sentences in 2017, five years after enacting section 1170(d). In so doing, the Legislature did not indicate that it intended to end resentencing for juvenile offenders with LWOP sentences under section 1170(d), and, as the Supreme Court has long recognized, absent an express declaration of legislative intent, we will find an implied repeal only when there is no rational basis for harmonizing the two potentially conflicting statutes.

Accordingly, in determining whether an individual was sentenced to imprisonment for life without the possibility of parole under section 1170(d), youthful offender parole should be disregarded.

Authority:

PEN 3051(b)(4)

People v. Hardin (2024) 15 Cal.5th 834, 845

Garris v. McCutchen (1997) 16 Cal.4th 469, 477

People v. Sorto (2024) 104 Cal.App.5th 435, 447-448

People v. Bagsby (2024) 106 Cal.App.5th 1040, 1061

People v. Heard (2022) 83 Cal.App.5th 608, 628-629

Fines and fees, Retroactivity, Sentencing, Standard of review, Statutory interpretation

Case 000791

Posted on by Gary McCurdy

Error and/or relief

On resentencing the defendant under section 1172.75, the court reimposed the restitution fine that was ordered at the original sentencing more than 10 years earlier. The restitution fine must be vacated.

First Holding:

Defendant contends the trial court erred by reimposing a restitution fine under section 1202.4(b) because the language of section 1465.9(d) mandates vacating these fines after 10 years. The People disagree and counter defendant’s fines were reimposed at the resentencing hearing, making section 1465.9 inapplicable because 10 years have not elapsed under the statute. We agree with defendant.

Authority:

John v. Superior Court (2016) 63 Cal.4th 91, 95

Second Holding:

Upon 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.

Authority:

PEN 1465.9(d)

Third Holding:

Trial courts have jurisdiction to modify every aspect of a sentence at a full resentencing hearing, including fines. Here, at resentencing the trial court confirmed and reimposed all previous terms, conditions, fines and fees, and admonishments provided by the court on the day of defendant’s original sentencing. The court clearly intended to reimpose the original restitution fine and not an additional, new obligation under section 1202.4(b).

Authority:

People v. Buycks (2018) 5 Cal.5th 857, 893

People v. Rosas (2010) 191 Cal.App.4th 107, 117

People v. Nilsson (2015) 242 Cal.App.4th 1, 34

Fourth Holding:

As in Salstrom, we find no support for the People’s position that this reimposition restarted section 1465.9’s 10-year clock. The plain language of section 1465.9(d) provides legislative intent to eliminate restitution fines under section 1202.4 after 10 years. Allowing trial courts to reimpose a restitution fine under section 1202.4(b) originally imposed more than 10 years prior could render section 1465.9 effectively meaningless for any defendant who is subject to a full resentencing” or is successful on an appeal or a collateral attack.

Authority:

People v. Salstrom (2025) 117 Cal.App.5th 596, 600, review granted on another issue March 11, 2026, S295038

Probation Parole PRCS, Sentencing

Case 000790

Posted on by Gary McCurdy

Error and/or relief

The court erred by setting the length of probation at four years instead of two years.

Holding:

Effective January 1, 2021, AB 1950 amended Penal Code section 1203.1 to limit the maximum probation period for felony offenses. Under prior law, the length of felony probation could not exceed five years or the maximum possible sentence of imprisonment, whichever was longer. Now, the statute provides that, with certain exceptions not applicable here, felony probation may continue for a period of time not exceeding two years. Because the trial court imposed a term of probation in excess of section 1203.1’s normal two-year limit, we will reduce the term to comply with that limit.

Authority:

PEN 1203.1(a)

People v. Kite (2023) 87 Cal.App.5th 986, 992

People v. Shelly (2022) 81 Cal.App.5th 181, 185

People v. Prudholme (2023) 14 Cal.5th 961, 979 [reducing probationary term to two years to comply with AB 1950, without remand to trial court]

Discretion, Standard of review

Case 000789

Posted on by Gary McCurdy

Error and/or relief

We conclude the trial court abused its discretion. It failed to follow the governing statute’s directions. Its conclusion that the defendant posed an unreasonable risk to public safety, as defined by section 1001.36(c)(4), was unsupported by substantial evidence. Accordingly, we issue the requested writ of mandate and direct the court to grant the defendant’s motion for mental health diversion.

First Holding:

In 2018, the Legislature enacted section 1001.36 to create a diversion program 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. By its terms, section 1001.36 was designed to encourage trial courts to broadly authorize pretrial mental health diversion, providing treatment for qualifying mental disorders that result in criminal behavior.

Authority:

PEN 1001.36

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 887, 890

Second Holding:

The decision whether to grant diversion is a two-step process. First, the court determines if the defendant satisfies the eligibility requirements set forth in section 1001.36(b). 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.

Authority:

PEN 1001.36(a) – (b)

Third Holding:

Second, the court determines if the defendant is suitable for diversion under the factors set forth in section 1001.36(c). Those factors are: (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(a) and (c)

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

Fourth Holding:

Finally, even when all eligibility and suitability factors are met, courts have discretion to deny mental health diversion. But this residual discretion must be exercised consistent with the principles and purpose of the governing law.

Authority:

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 895-896

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

Fifth Holding:

Our review is for abuse of discretion.

Authority:

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

Sixth Holding:

Under section 1170.18, the Legislature has narrowly defined an unreasonable risk of danger to public safety to mean an unreasonable risk that the petitioner will commit a new violent felony within the meaning of section 667(e)(2)(C)(iv). The violent felonies encompassed in this definition are known as super strikes. The super strikes are murder, attempted murder, solicitation to commit murder, assault with a machine gun on a police officer, possession of a weapon of mass destruction, any serious or violent felony punishable by death or life imprisonment, or any sexually violent offenses or sexual offense committed against minors under the age of 14.

Authority:

PEN 1170.18(c)

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

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

Seventh Holding:

By statute, when determining the risk of danger, t]he court may consider the opinions of the district attorney, the defense, or a qualified mental health expert, and may consider the defendant’s treatment plan, the defendant’s violence and criminal history, the current charged offense, and any other factors that the court deems appropriate. A defendant who seeks diversion is not being sentenced, so the general sentencing objectives set forth in rule 4.410 of the California Rules of Court are inapplicable.

Authority:

PEN 1001.36(c)(4)

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

Eighth Holding:

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.

The trial court expressed that it could not know whether the defendant was going to commit a super strike, and based on his two violent incidents from 2007 and 2010, the trial court concluded that there was a danger that there was a likelihood that the defendant could commit a super strike, thereby permitting the trial court to exercise its residual discretion to deny diversion.

But the court misunderstood what was required. The plain language of the statute requires a finding that a defendant will not pose an unreasonable risk of committing a super strike.

The statute does not, as the trial court suggested, require a prediction that a defendant will not, in fact, commit a super strike. The correct analysis thus requires assessing probabilities; not predicting outcomes, as the trial court incorrectly understood.

These are two distinct types of inquiry. Applying the correct standard to the record before us, we conclude the evidence is insubstantial that the defendant is too dangerous to be treated in the community on the ground that he poses an unreasonable risk of committing a super strike.

A trial court abuses its discretion when the factual findings critical to its decision find no support in the evidence.

Authority:

PEN 1001.36(c)(4)

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

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

Ninth Holding:

The only question that remains is whether further proceedings are required. We conclude they are not. The trial court found that the defendant satisfied all criteria for diversion except the public safety factor, leaving nothing further to be decided. The People do not argue otherwise. Under these circumstances, we will reverse the court’s order with directions to grant the defendant’s motion unless the People present changed circumstances that warrant rehearing.

Authority:

People v. Williams (2021) 63 Cal.App.5th 990, 1005

 

Juveniles, Sentencing

Case 000788

Posted on by Gary McCurdy

Error and/or relief

The minor was found to have committed assault with force likely to produce great bodily injury, carrying a concealed, loaded firearm, evading an officer, and resisting an officer. The juvenile court committed appellant to a Secure Youth Treatment Facility. The juvenile court lacked authority to do so. Remanded for a new disposition hearing.

First Holding:

the juvenile court lacked authority to commit him to a Secure Youth Treatment Facility (SYTF) because the most recent offense for which he was adjudicated was not a qualifying offense under Welfare and Institutions Code section 707(b).

Authority:

WIC 875(a)(1)-(2)

Second Holding:

Before the enactment of section 875, our Supreme Court interpreted similar language in section 733(c). Section 733(c) prohibits a ward’s commitment to the Department of Corrections and Rehabilitation, Division of Juvenile Facilities [known also as DJJ and DJF] if the ward’s most recent offense alleged in any petition and admitted or found to be true by the court is not described in section 707(b) or Penal Code section 290.008(c).

The court held this language is clear and lends itself to only one reasonable interpretation. The phrase “most recent” describes when the minor committed the offense, not when the petition is adjudicated.

Authority:

In re D.B. (2014) 58 Cal.4th 941, 947

In re B.J. (2020) 49 Cal.App.5th 646, 648

Third Holding:

The Legislature used language in section 875 substantially similar to language the Supreme Court had already interpreted in section 733(c). We presume, therefore, that the Legislature intended the same construction. Now, instead of DJJ, eligible youth can be committed to a SYTF if their most recent offense is described in section 707(b).

The court did not have authority to impose a SYTF commitment because appellant’s most recently committed offenses occurred four months after the only offense that comes with section 707(b), and are not qualifying offenses. Remand is necessary to allow the court to conduct a new disposition hearing.

Authority:

WIC 875

Moran v. Murtaugh Miller Meyer & Nelson, LLP (2007) 40 Cal.4th 780, 785