Tag Archives: Discretion

Discretion, Sentencing, Sixth Amendment

Case: 000189

Posted on by Gary McCurdy

Error and/or relief

The trial court erred by reimposing the upper term sentences based on aggravating factors that were not proven beyond a reasonable doubt to a jury as required under section 1170(b)(2). This error violated his Sixth Amendment right to a jury trial and was not harmless beyond a reasonable doubt. The trial court failed to exercise its discretion under AB 518 (2021-2022 Reg. Sess.) (regarding the choice of sentences to impose when section 654 permits sentencing on only one of the counts it applies to) at the resentencing hearing. The abstract of judgment must be corrected to reflect the correct sentencing date and number of custody credits.

First Holding:

Under the Fifth and Sixth Amendments to the United States Constitution, any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence. Section 1170(b)(2) similarly provides that the trial court may impose a sentence exceeding the middle term only when circumstances in aggravation of the crime justify imposition of an upper term sentence, and the facts underlying those circumstances have been stipulated to by the defendant or have been found true beyond a reasonable doubt’ at a jury or court trial. This jury trial right is not merely a state law entitlement, but is constitutionally required for all aggravating facts, other than a prior conviction, relied upon to justify an upper term sentence.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1078

Second Holding:

When a defendant is deprived of a jury trial on aggravating facts used to justify imposition of an upper term sentence, the reviewing court must apply the Chapman standard of review. Under that standard, a sentence imposed under section 1170(b) must be reversed and remanded unless the reviewing court concludes beyond a reasonable doubt that a jury, applying that same standard, would have found true all of the aggravating facts upon which the court relied to conclude the upper term was justified, or that those facts were otherwise proved true in compliance with the current statute. Lack of a jury trial is not harmless under Chapman if the record contains evidence that could rationally lead to a contrary finding with respect to the aggravating fact at issue.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1087

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

Third Holding:

Section 654 prohibits a court from punishing a defendant more than once for the same act or course of conduct. Prior to 2022, the statute required that an act or omission punishable in different ways by different statutes be punished under the provision that provided the longest potential term of imprisonment. (Former sec. 654(a).) AB 518 amended section 654 effective January 1, 2022, to grant a court discretion to punish such an act under either of such provisions. The trial court erroneously failed to exercise its discretion under Assembly Bill 518 at the resentencing hearing. Since we are again remanding this matter for resentencing under Senate Bill 567, the trial court should conduct a full resentencing as to all counts based on the law and circumstances that apply when resentencing occurs, including the amendments to section 654 under AB 518.

Authority:

People v. Hester (2000) 22 Cal.4th 290, 294

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

Fourth Holding:

The abstract of judgment will need to be corrected to reflect the correct sentencing date and number of custody credits.

[Gary note: The court did not cite authority for this obviously required order. There are many cases it could have cited. I have listed some of them below.]

Authority:

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

People v. Delgado (2008) 43 Cal.4th 1059, 1070

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

In re Black (1967) 66 Cal.2d 881, 890

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

People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2

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

Case: 000188

Posted on by Gary McCurdy

Error and/or relief

The court denied the defendant’s motion for mental health diversion under section 1001.36, and placed him on probation. The evidence is insufficient to support the trial court’s finding that his undisputed mental health disorders were not a motivating, causal, or contributing factor in his involvement in the crime. We will reverse the probation order due to insufficient evidence supporting the trial court’s finding of ineligibility for mental health diversion under Penal Code section 1001.36(b)(2). We will remand the matter for the trial court to exercise its discretion under Penal Code section 1001.36(c) regarding defendant’s suitability for mental health diversion.

First Holding:

Since 2018, Penal Code 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 later amendments have only confirmed the Legislature’s desire to expand mental health treatment through diversion. 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. A qualifying diagnosis creates a rebuttable presumption that the disorder was a significant factor in the commission of the offense. The presumption can be overcome if there is clear and convincing evidence that the disorder was not a motivating factor, causal factor, or contributing factor to the defendant’s involvement in the alleged offense.

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

Second Holding:

We review for substantial evidence a decision that a qualifying mental health disorder (which the trial court found to exist here) was not a motivating factor, causal factor, or contributing factor in the charged conduct—a finding that must be supported by clear and convincing evidence. Given that standard, on appeal we must determine 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. We also must view the record in the light most favorable to the prevailing party below and give due deference to how the trier of fact may have evaluated the credibility of witnesses, resolved conflicts in the evidence, and drawn reasonable inferences from the evidence.

Even considering the record in the light most favorable to the challenged ruling, we conclude it does not contain substantial evidence from which a reasonable trier of fact could have found it highly probable that defendant’s mental disorders were not a motivating factor, causal factor, or contributing factor in his involvement in the crime. A qualifying diagnosis creates a presumption that the defendant’s mental condition contributed to his criminal behavior. And the prosecution can only rebut this presumption by producing clear and convincing evidence that there was no causal connection. he statutory presumption is not overcome simply by the absence of evidence that the mental disorder was a motivating factor, or the absence of evidence that the defendant was actively experiencing symptoms while committing the crime. The statutory presumption is not overcome simply by the absence of evidence that the mental disorder was a motivating factor, or the absence of evidence that the defendant was actively experiencing symptoms while committing the crime.

Authority:

Lacour v. Superior Court (2025) 110 Cal.App.5th 391, 401, 404

Conservatorship of O.B. (2020) 9 Cal.5th 989, 995–996

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

Equal protection, Juveniles, Probation Parole PRCS, Sentencing

Case: 000187

Posted on by Gary McCurdy

Error and/or relief

The defendant contends on this appeal that the trial court erroneously found he was not entitled to a Franklin hearing in his petition for writ of habeas corpus and erred in denying his Franklin motion as successive. In 2018, the defendant filed a petition for writ of habeas corpus requesting a Franklin hearing.

(The Franklin court had held that a defendant seeking to preserve evidence following a final judgment should be given an opportunity to make a record of information relevant to his youth offender parole hearing.. Franklin authorized trial courts to receive any documents, evaluations or testimony that may be relevant at an eventual youth offender parole hearing.)

That court (in 2018) denied that petition on the basis that he was not eligible for a youth offender parole hearing because he would already be released before reaching the 15 years’ threshold for youth offender parole. In 2024, the defendant filed a motion for a Franklin hearing under section 1203.01. The trial court denied that motion on the grounds that it was a successive motion. The People agree with defendant that the court erred when it denied his motion as successive. We conclude the trial court erred when it denied defendant’s motion for a Franklin hearing as successive. We reverse the court’s order and remand for the court to consider defendant’s motion under Penal Code section 1203.01.

First Holding:

Effective January 1, 2014, SB 260 (2013–2014 Reg. Sess.) enacted sections 3051, 3046(c), and 4801(c) to provide a parole eligibility mechanism for youthful offenders. Defendants who were 25 years old or younger at the time they committed the offense and were convicted of a determinate term are entitled to a youth offender parole hearing during their 15th year of incarceration. The Franklin court had held that a defendant seeking to preserve evidence following a final judgment should be given an opportunity to make a record of information relevant to his youth offender parole hearing.. Franklin authorized trial courts to receive any documents, evaluations or testimony that may be relevant at an eventual youth offender parole hearing. For defendants whose judgments were final, the proper procedure to obtain a Franklin hearing is to file a motion in superior court under the original caption and case number, citing the authority of section 1203.01 and the Cook decision.

Authority:

PEN 1203.01

People v. Franklin (2016) 63 Cal.4th 261,283-284

People v. Perez (2016) 3 Cal.App.5th 612, 618

In re Cook (2019) 7 Cal.5th 439

Second Holding:

There is no express bar to successive motions or requests for a Franklin hearing under section 1203.01. The defendant’s section 1203.01 motion should not have been denied as successive.

Authority:

PEN 1203.1

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

In re Cook (2019) 7 Cal.5th 439

Third Holding:

The trial court’s order denying a defendant’s Franklin motion is reviewed under the abuse of discretion standard. In deciding whether the court abused its discretion we ask whether the trial court’s findings of fact are supported by substantial evidence, whether its rulings of law are correct, and whether its application of the law to the facts was neither arbitrary nor capricious. Critical to the resolution of this case, we note that when a trial court’s decision rests on an error of law, that decision is an abuse of discretion.

Authority:

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

People v. Benzler (2021) 72 Cal.App.5th 743, 749

People v. Superior Court (Humberto S.) (2008) 43 Cal.4th 737, 746

Fourth Holding:

Although defendant originally sought a Franklin hearing by filing a petition for writ of habeas corpus, as Cook explained, habeas corpus was not the proper procedure in the first instance. Accordingly, the court’s order denying the habeas petition did not bar the court from ruling on defendant’s subsequent Franklin motion, which was properly raised under section 1203.01 and Cook. As such, the trial court erred when it denied defendant’s Franklin motion on the sole basis he had already sought a Franklin hearing by filing a habeas petition. Therefore, the court abused its discretion when it denied defendant’s Franklin motion as successive.

Authority:

ADIn re Cook (2019) 7 Cal.5th 439, 457-458

Discretion, Standard of review, Sufficiency of and substantial evidence

Case: 000178

Posted on by Gary McCurdy

Error and/or relief

The trial court abused its discretion in denying the defendant’s motion for pretrial mental health diversion under Penal Code section 1001.36. The People concede that the court erred in finding the him ineligible for diversion. The judgment is conditionally reversed, the order denying the defendant’s motion for mental health diversion is vacated, and the matter is remanded for the trial court to reconsider his diversion motion consistent with this opinion. If the trial court again denies the motion, the judgment shall be reinstated.

First Holding:

A trial court may grant mental health diversion to defendants who satisfy the eligibility and suitability requirements set forth in the statute. A defendant is eligible for diversion if he or she has been diagnosed with a qualifying mental disorder and that disorder was a significant factor in the commission of the charged offense. A defendant is suitable for diversion if the defendant’s symptoms would respond to mental health treatment, the defendant consents to diversion and waives the right to a speedy trial, the defendant agrees to comply with treatment as a condition of diversion, and the defendant will not pose an unreasonable risk of danger to public safety if treated in the community.

Authority:

PEN 1001.36

Second Holding:

We review a trial court’s denial of 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. 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. In making this assessment the appellate court must view the record in the light most favorable to the prevailing party below and give due deference to how the trier of fact may have evaluated the credibility of witnesses, resolved conflicts in the evidence, and drawn reasonable inferences from the evidence.

Authority:

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

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

Third Holding:

Under the statute, a trial court must presume that a defendant’s diagnosed mental disorder was a significant factor in the commission of the crime, 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. The prosecution bears the burden of presenting such clear and convincing evidence. The absence of evidence proving that a defendant’s mental disorder was a factor in the commission of the offenses is not substantial evidence supporting a finding by clear and convincing evidence that a defendant’s mental disorder was not a factor in the commission of the offenses.

Authority:

Lacour v. Superior Court (2025) 110 Cal.App.5th 391, 404

Discretion, Duty of the court

Case: 000174

Posted on by Gary McCurdy

Error and/or relief

After reviewing the petition and the parties’ briefing, we conclude that, at a pretrial hearing in May 2024, the court erred in denying petitioner’s request for a bail review hearing after petitioner showed changed circumstances entitling him to such a review. Therefore, we grant the petition and direct the trial court to hold a new bail review hearing. The court held that circumstances had changed between the former bail hearing and the current because a Court of Appeal published an opinion disagreeing with another appellate court’s conclusion that pretrial detention is the only option if bail is set at a level the defendant can reasonably afford but is not sufficient to protect the state’s compelling interests. In failing to address the conflict between the two opinions, the court abused its discretion.

First Holding:

Under section 1289, after a defendant has been admitted to bail upon an indictment or information, the court in which the charge is pending may, upon good cause shown, either increase or reduce the amount of bail. Such good cause must be founded on changed circumstances relating to the defendant or the proceedings.

Authority:

PEN 1289

In re Alberto (2002) 102 Cal.App.4th 421, 430

Second Holding:

If the court properly determines nonfinancial conditions are insufficient to protect the state’s interests, but that imposing a money bail condition (alone or in combination with nonfinancial conditions) would adequately protect the public and the victims and ensure the arrestee’s presence in court, the court must consider the individual arrestee’s ability to pay and set bail at a level the arrestee can reasonably afford. If money bail set at a level the defendant can reasonably afford is not sufficient to protect the state’s compelling interests, then the trial court’s only option is to order pretrial detention, assuming the evidentiary record is sufficient to support the findings necessary to justify such an order.

Authority:

In re Brown (2022) 76 Cal.App.5th 296

In re Humphrey (2021) 11 Cal.5th 135

Third Holding:

The appellate court held that circumstances had changed between the former bail hearing and the current because a Court of Appeal published an opinion disagreeing with another appellate court’s conclusion that pretrial detention is the only option if bail is set at a level the defendant can reasonably afford but is not sufficient to protect the state’s compelling interests. In failing to address the conflict between the two opinions, the court abused its discretion. The Kowalczyk court had disagreed with the Brown court’s earlier conclusion that a pretrial detention order is the only option when a bail amount the defendant can afford is insufficient to protect the public and ensure the defendant’s presence in court. The Kowalczyk court concluded that under Humphrey, if a court makes the findings necessary to support a detention, the court may set bail in an amount higher than a defendant can afford.

Authority:

In re Kowalczyk (2022) 85 Cal.App.5th 667

Amelioration, Sentencing

Case: 000170

Posted on by Gary McCurdy

Error and/or relief

The sentence impose at the resentencing under section 1172.75 must be vacated because the court imposed unauthorized sentences on the two gun enhancements, thus requiring a remand for full resentencing. Any sentence imposed on the section 12022.5 enhancements shall be in accordance with the terms specified under current law.

First Holding:

Any sentence enhancement that was imposed prior to January 1, 2020, pursuant to section 667.5(b) is legally invalid. When a judgment includes such an enhancement, the court shall recall the sentence and resentence the defendant. 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. It shall not result in a longer sentence than the one originally imposed.

The statute requires the court to apply changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing. The court may consider postconviction factors, including, but not limited to, the disciplinary record and record of rehabilitation of the defendant while incarcerated, evidence that reflects whether age, time served, and diminished physical condition, if any, have reduced the defendant’s risk for future violence, and evidence that reflects that circumstances have changed since the original sentencing so that continued incarceration is no longer in the interest of justice.

Authority:

PEN 1172.75

Second Holding:

Section 1172.75 requires full resentencing for all defendants who qualify for recall of sentence under the statute. The court may revisit all prior sentencing decisions and has jurisdiction to modify every aspect of the sentence, and not just the portion subjected to the recall.

Authority:

People v. Rogers (2025) 108 Cal.App.5th 340, 36

People v. Monroe (2022) 85 Cal.App.5th 393, 402

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

Third Holding:

Though the term imposed for the firearm enhancements permitted the then-upper term of five years imposed at sentencing in 1984 under a triad of three years, four years or five years, the triad has since changed to three years, four years, or ten years. Reimposition of the five years is no longer an option because it is no longer part of the available triad. The court cannot impose the upper term of 10 years, because section 1172.75 specifies that the court may not impose a sentence longer than the original one. Further, imposition of a sentence higher than was available at the time of the offense would encounter ex post facto problems. Because of the unauthorized sentences on the firearm enhancements, the matter must be remanded for full resentencing, and the defendant will have another opportunity to seek the dismissal of his prior strike conviction.

Authority:

PEN 1172.75

People v. King (1993) 5 Cal.4th 59, 79-80 [ex post facto violated by imposing enhancements that could not have been imposed at the time of the offense]

People v. Trujeque (2015) 61 Cal.4th 227, 256-257 [permitting prosecution of a case that could not have been refiled under prior law violate ex post facto proscription]

Discretion, Duty of the court, Sentencing, Standard of review

Case: 000168

Posted on by Gary McCurdy

Error and/or relief

In 2024, the Department of Corrections and Rehabilitation (CDCR) sent the trial court a letter providing it with authority to resentence defendant pursuant to section 1172.1 in light of the court’s newfound discretion to dismiss prior serious felony enhancements. The court appointed defendant counsel and set the matter for a hearing. After the hearing, the court stated it was not going to exerciseits discretion, that it was leaving the sentence in play as originally sentenced, and it denied the motion.

The trial court erred in denying recall and resentencing without finding that the defendant currently poses an unreasonable risk of danger to public safety, as defined in section 1170.18(c), as required to overcome the presumption in favor of recall and resentencing provided for in section 1172.1(b)(2). The trial court failed to understand the proper scope of its discretion in light of the mandated presumption in favor of recall and resentencing. Thus, it abused its discretion in rendering its order denying relief. We deem it appropriate, here, to remand the matter to the trial court for reconsideration of the CDCR’s recommendation pursuant to section 1172.1.

First Holding:

A court may at any time upon the recommendation of the secretary [of CDCR] or the Board of Parole Hearings in the case of a defendant incarcerated in state prison recall the sentence and commitment previously ordered and resentence the defendant in the same manner as if they had not previously been sentenced, whether or not the defendant is still in custody, and provided the new sentence, if any, is no greater than the initial sentence.

Authority:

PEN 1172.1

Second Holding:

Where such a resentencing request is made, there is now a presumption in favor of recall and resentencing of the defendant, which may only be overcome if a court finds the defendant is an unreasonable risk of danger to public safety, as defined in 1170.18(c).

Authority:

PEN 1172.1(b)(2)

People v. McMurray (2022) 76 Cal.App.5th 1035, 1040

Third Holding:

“Unreasonable risk of danger to public safety” is defined as an unreasonable risk that the petitioner will commit a new violent felony within the meaning of section 667(e)(2)(C)(iv). Those offenses—known as super strikes—include, among others, any homicide and any serious or violent felony offense punishable in California by life imprisonment or death.

Authority:

PEN 1170.18(c)

People v. Braggs (2022) 85 Cal.App.5th 809, 818

People v. Valencia (2017) 3 Cal.5th 347, 351

Fourth Holding:

Where the CDCR recommends recall and resentencing, the court is also now required to hold a hearing (unless the parties otherwise stipulate), state on the record its reasons for its decision, provide notice to the defendant, and appoint counsel for the defendant. Furthermore, when recalling and resentencing pursuant to its provisions, the court shall apply any changes in law that reduce sentences or provide for judicial discretion.

Authority:

PEN 1172.1(a)(6)–(8), (b)(1)

People v. McMurray (2022) 76 Cal.App.5th 1035, 1040

People v. Pierce (2023) 88 Cal.App.5th 1074, 1078

Fifth Holding:

We review a trial court’s resentencing determination for an 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. An abuse of discretion is shown when the trial court applies the wrong legal standard.

Authority:

People v. Frazier (2020) 55 Cal.App.5th 858, 863

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

People v. Hall (2016) 247 Cal.App.4th 1255, 1264

People v. Gonzalez (2024) 103 Cal.App.5th 215, 231

People v. Knoller (2007) 41 Cal.4th 139, 156–158 [court abused its discretion in granting motion for new trial based on erroneous legal standards]

In re Charlisse C. (2008) 45 Cal.4th 145, 159–160, 167 [juvenile court abused discretion in applying incorrect standard in disqualifying minor’s counsel]

Appellate Principles, Fines and fees, Sentencing

Case: 000148

Posted on by Gary McCurdy

Error and/or relief

Where the trial court intended to impose the minimum restitution fine, but mistakenly believed the minimum was $600 rather than $300, the appellate court modified the restitution fine to $300 and directed the trial court to prepare an amended minute order following sentencing and an amended abstract of judgment reflecting these amounts. Here, the record makes clear that the trial court intended to impose the statutory minimum fine. We therefore modify the judgments to impose a $300 restitution fine with a matching, suspended parole revocation restitution fine in each case.

First Holding:

In every case where a person is convicted of a crime, the court shall impose a separate and additional restitution fine, unless it finds compelling and extraordinary reasons for not doing so and states those reasons on the record. The restitution fine shall be set at the discretion of the court and commensurate with the seriousness of the offense. If the person is convicted of a felony, the fine shall not be less than three hundred dollars ($300) and not more than ten thousand dollars ($10,000).

Authority:

PEN 1202.4(b)(1)

Second Holding:

[GARY NOTE: The court did not cite any authority for its jurisdiction to modify the mistaken order of the court below, but it does have that authority under PC 1260.]

Authority:

PEN 1260 [The court may reverse, affirm, or modify a judgment or order appealed from, or reduce the degree of the offense or attempted offense or the punishment imposed, and may set aside, affirm, or modify any or all of the proceedings subsequent to, or dependent upon, such judgment or order, and may, if proper, order a new trial and may, if proper, remand the cause to the trial court for such further proceedings as may be just under the circumstances.]

Discretion, Juveniles

Case: 000140

Posted on by Gary McCurdy

Error and/or relief

The court erred in setting a maximum confinement time when he was released home on probation. We will strike the maximum confinement term and affirm the judgment as modified.

First Holding:

It is abuse of discretion for a juvenile court to set a maximum confinement term for a minor who is not removed from his parents’ custody

Authority:

In re A.C. (2014) 224 Cal.App.4th 590, 591-592 [where a juvenile court’s order includes a maximum confinement term for a minor who is not removed from parental custody, the remedy is to strike the term]

Second Holding:

[GARY NOTE, for context, Welfare and Institutions Code section 726 states, in pertinent part, that IF a minor is removed from the custody of the parents, the court must state the maximum term, which the section also defines.]

Authority:

WIC 726

Discretion, Juveniles, Standard of review, Statutory interpretation

Case: 000133

Posted on by Gary McCurdy

Error and/or relief

In 2000, appellant was sentenced to life in prison without the possibility of parole after being tried as an adult for two murders he committed when he was 17. In 2021, his sentence was recalled under Penal Code section 1170, subdivision (d). The prosecution filed a motion to again transfer appellant’s case from juvenile court to criminal court. The court granted the motion, and appellant challenges that ruling on appeal. We conclude that the court misapprehended one aspect of its discretion, reverse the order transferring appellant to criminal court, and remand for reconsideration of the issue.

First Holding:

In determining at a transfer hearing whether a juvenile should be tried as an adult, the court must consider five statutory factors, one of which is whether the minor can be rehabilitated prior to the expiration of the juvenile court’s jurisdiction. The court stated that juvenile jurisdiction would have ended when appellant turned 25 years old. The court was quite clear that its consideration of the relevant factor was always directed at determining whether appellant would have been rehabilitated by the age of 25.

However, the court was incorrect. The juvenile court may retain jurisdiction over a person who is 25 years of age or older for a period not to exceed two years from the date of disposition if the person is found to be a person described in Section 602 by reason of the commission of an offense listed in subdivision (b) of Welfare and Institutions Code, Section 707. In this instance, the defendant would have been in his 40s two years after disposition hearing held in this case.

Authority:

WIC 707(d)

Second Holding:

When the appellant presents an issue of statutory interpretation, we review it de novo.

Authority:

In re Noah S. (2021) 67 Cal.App.5th 410, 414

Third Holding:

Reversal is required 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. Here, the court did not express how it would have ruled had it known juvenile jurisdiction could have lasted longer. One of the few comments the court made about the defendant’s post-age 25 conduct cuts against a finding of harmlessness. Paraphrased, the court stated that there was no question before it that the defendant has grown as an adult, but that the question was whether or not that growth would have occurred before age 25. It stated that the evidence it considered at the hearing indicates his growth occurred well past the age of 25.

Authority:

People v. Gutierrez (2014) 58 Cal.4th 1354, 139

Fourth Holding:

In order to transfer a minor from juvenile court to criminal court, the court must find by clear and convincing evidence that the minor is not amenable to rehabilitation while under the jurisdiction of the juvenile court.

Authority:

WIC 707(a)(3)

Amelioration, Appellate Principles, Discretion, Plea bargains, Retroactivity, Sentencing, Standard of review

Case: 000130

Posted on by Gary McCurdy

Error and/or relief

Following remand from the defendant’s prior appeal, the trial court declined to strike a firearm enhancement. The court did not realize the impact of recent changes in the law on gang criminal activity, asserting that its jurisdiction was limited to the scope defined in the remittitur (which remanded for reconsideration of the request to dismiss the firearm enhancement). We reverse the judgment and remand the matter for the trial court to rule on defendant’s motion to dismiss the gang enhancements, and to reconsider its determination declining to dismiss the firearm enhancements under section 1385 under the standard more recently articulated by the Supreme Court.

First Holding:

The scope of the superior court’s jurisdiction as defined by a remittitur does not prevent the retroactive application of ameliorative laws. We review associated questions of statutory construction de novo. Whether a statute applies retroactively is a question of statutory construction we review de novo. We review for abuse of discretion the trial court’s exercise of discretion under section 1385(c).

Authority:

People v. Lopez (2025) 17 Cal.5th 388, 396

People v. Burke (2023) 89 Cal.App.5th 237, 242

People v. Brown (2012) 54 Cal.4th 314, 319

People v. Walker (2024) 16 Cal.5th 1024, 1033

Second Holding:

Section 1385(c)(1) provides 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 its discretion under this subdivision, the court shall consider and afford great weight to evidence offered by the defendant to prove that any of the nine mitigating circumstances in subparagraphs (A) to (I) are present. Proof of the presence of one or more of these circumstances weighs greatly in favor of dismissing the enhancement, unless the court finds that dismissal of the enhancement would endanger public safety.

Authority:

PEN 1385(c)

Third Holding:

Absent a finding that dismissal would endanger public safety, a court retains the discretion to impose or dismiss enhancements provided that it assigns significant value to the enumerated mitigating circumstances, when they are present. In other words, if the court does not find that dismissal would endanger 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

Fourth Holding:

The Legislature amended PC 186.22(g) to redefine the phrase “benefit, promote, further, or assist” a criminal street gang for the purposes of section 186.22. The phrase now means “to provide a common benefit to members of a gang where the common benefit is more than reputational.” Those elemental changes apply retroactively to all nonfinal cases such as this one.

Authority:

PEN 186.22(e)(1)

PEN 186.22(g)

People v. Tran (2022) 13 Cal.5th 1169, 1207

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

Fifth Holding:

Where a statute is silent regarding retroactivity, we employ the ordinary presumptions and rules of statutory construction to discern the Legislature’s intent. Ordinarily, statutes are presumed to apply only prospectively, unless the Legislature expressly declares otherwise. Estrada, however, held that an amendment to a statute that lessened punishment for a crime gave rise to an inference of contrary legislative intent; that is, that the Legislature must have intended that the amendment mitigating punishment would apply retroactively to every case to which it constitutionally could apply. The Estrada rule rests on an inference that the Legislature intends an amendment reducing punishment under a criminal statute to apply as broadly as possible, distinguishing only as necessary between sentences that are final and sentences that are not.

Authority:

Californians for Disability Rights v. Mervyn’s, LLC (2006) 39 Cal.4th 223, 230

People v. Burgos (2024) 16 Cal.5th 1, 7

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

People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 308

Sixth Holding:

If the trial court exercises its discretion to dismiss the gang enhancements, the prosecution will be entitled to the same remedy as the defense (i.e., withdrawal from the plea agreement) and the trial court may withdraw its approval of the plea agreement as well. In that event, the trial court must restore the parties to the status quo ante, including permitting the prosecution to request to reopen the preliminary hearing and present evidence on the new elements of the gang allegations or to proceed without those charges.

Authority:

People v. Stamps (2020) 9 Cal.5th 685, 707-708

People v. Superior Court (Garcia) (1982) 131 Cal.App.3d 256

Mendoza v. Superior Court (2023) 91 Cal.App.5th 42

Seventh Holding:

Penal Code section 1016.7 provides that, in the interest of justice and to reach a just resolution during plea negotiations, the prosecutor shall consider whether the defendant has experienced psychological, physical, or childhood trauma, whether the defendant is or was a youth at the time of the commission of the offense, and whether any of those considerations contributed to the commission of an alleged offense. The statute defines youth as any person under 26 years of age on the date of the offense. But it is not retroactive. It does not reduce punishment for a criminal offense, create discretion to reduce punishment, narrow the scope of criminal liability, or create a concrete avenue for certain individuals charged with a criminal offense to be treated more leniently or avoid punishment altogether.

Authority:

People v. Burgos (2024) 16 Cal.5th 1, 13

Discretion, Elements of crime, Probation Parole PRCS

Case: 000108

Posted on by Gary McCurdy

Error and/or relief

The court revoked the defendant’s probation and sentenced him to six years in prison. Because we conclude no substantial evidence supports a finding that the defendant willfully failed to appear at the January 1998 hearing and because the September 1998 offense occurred after his probation had ended, we reverse.

First Holding:

When a court summarily revokes a defendant’s probation, the revocation, summary or otherwise, shall serve to toll the running of the period of supervision. However, the tolling provision preserves the trial court’s authority to adjudicate, in a subsequent formal probation violation hearing, whether the probationer violated probation during, but not after, the court-imposed probationary period. In other words, because the defendant’s three-year probation term ended in July 1998, the court could adjudicate after July 1998 whether acts he committed between July 1995 and July 1998 violated his probation, but could not adjudicate whether acts committed after July 1998 violated his probation.

Authority:

PEN 1203.2(a)

People v. Leiva (2013) 56 Cal.4th 498, 502

Second Holding:

Revocation of probation rests in the sound discretion of the court. Although that discretion is very broad, the court may not act arbitrarily or capriciously; its determination must be based upon the facts before it.

Authority:

People v. Zaring (1992) 8 Cal.App.4th 362, 378

Third Holding:

A court abuses its discretion in finding a defendant violated a condition of probation unless the evidence supports the conclusion that the conduct constituted a willful violation of that condition.

Authority:

People v. Leiva (2013) 56 Cal.4th 498, 379

People v. Galvan (2007) 155 Cal.App.4th 978, 982

Fourth Holding:

The facts supporting revocation of probation may be proven by a preponderance of the evidence. However, the evidence must support a conclusion the probationer’s conduct constituted a willful violation of the terms and conditions of probation.

Authority:

People v. Rodriguez (1990) 51 Cal.3d 437, 439

People v. Sem (2014) 229 Cal.App.4th 1176, 1188 [a willful violation is a prerequisite to revoking probation]