Tag Archives: Discretion

Discretion, Probation Parole PRCS, Sentencing, Standard of review

Case 001067

Posted on by Gary McCurdy

Error and/or relief:

There is not sufficient nexus with the current offense or with future criminality to justify the imposition of the gang conditions of probation. In addition, payment for counseling cannot be ordered as a condition of probation. We direct the trial court to strike the gang conditions and to modify the counseling provision to clarify that payment of costs is not a condition of probation.

First Holding:

When a trial court grants probation, section 1203.1(j) states that the court may impose and require any or all of the terms of imprisonment, fine, and conditions specified in that section, and other reasonable conditions, as it may determine are fitting and proper to the end that justice may be done, that amends may be made to society for the breach of the law, for any injury done to any person resulting from that breach, and generally and specifically for the reformation and rehabilitation of the probationer.

Accordingly, courts have broad discretion to impose conditions to foster rehabilitation and to protect public safety.

Authority:

PEN 1203.1(j)

People v. Carbajal (1995) 10 Cal.4th 1114, 1120

Second Holding:

There are limits to the conditions a court may impose. Under Lent, a condition of probation will be invalid if it:

(1) has no relationship to the crime of which the offender was convicted,

(2) relates to conduct which is not in itself criminal, and

(3) requires or forbids conduct which is not reasonably related to future criminality.

This test is conjunctive—all three prongs must be satisfied before a reviewing court will invalidate a probation term.

Authority:

People v. Lent (1975) 15 Cal.3d 481, 486

People v. Olguin (2008) 45 Cal.4th 375, 379

Third Holding:

We review the trial court’s decision to impose a given probation condition for an abuse of discretion, considering the facts of the underlying offense and the defendant’s background. (Olguin, supra, 45 Cal.4th at p. 379; People v. Patillo (1992) 4 Cal.App.4th 1576, 1579.) We review constitutional challenges to specific conditions of probation—including assertions that a condition improperly delegates the trial court’s authority—de novo.

Authority:

People v. Olguin (2008) 45 Cal.4th 375, 379

People v. Patillo (1992) 4 Cal.App.4th 1576, 1579

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

Fourth Holding:

The defendant complains that the court should not have reviewed his juvenile record, as juvenile proceedings are confidential.

In general, juvenile court records are confidential. Welfare and Institutions Code section 827 governs the release of juvenile court records. It enumerates a list of persons who may inspect a juvenile case file without a court order, which includes, among others, court personnel, the district attorney, a city attorney, or city prosecutor authorized to prosecute criminal or juvenile cases under state law, attorneys for the parties, judges, referees, other hearing officers, probation officers, and law enforcement officers who are actively participating in criminal or juvenile proceedings involving the minor, and any other person who may be designated by court order of the judge or the juvenile court upon filing a petition.

Authority:

WIC 827

City of Eureka v. Superior Court (2016) 1 Cal.App.5th 755, 761

Fifth Holding:

Welfare and Institutions Code section 828(a)(2) states that a court shall consider any information relating to the taking of a minor into custody, if the information is not contained in a record that has been sealed, for purposes of determining whether adjudications of commission of crimes as a juvenile warrant a finding that there are circumstances in aggravation pursuant to Section 1170 of the Penal Code or to deny probation.

The defendant’s juvenile record has not been sealed. Thus, court personnel, the prosecutor, and the probation department were permitted to inspect the records without court order. Moreover, the court was permitted to consider information related to the taking of Reeves into custody for the purpose of determining whether to grant or deny probation.

Authority:

WIC(a)(2)

Sixth Holding:

Probation conditions need not relate directly to the underlying conviction, and may, instead, be reasonably related to future criminality. But here we cannot conclude that the gang conditions are reasonably related to future criminality. As discussed, even if appropriately considered, the defendant’s juvenile record is 10 years old, and in the intervening 10 years, there is no indication that the defendant has engaged in any criminal activity related to gangs.

Authority:

People v. Lent (1975) 15 Cal.3d 481, 486

Seventh Holding:

Courts may properly base probation conditions upon information in a probation report that raises concerns about future criminality unrelated to a prior offense. Yet Lent’s requirement that a probation condition must be reasonably related to future criminality contemplates a degree of proportionality between the burden imposed by a probation condition and the legitimate interests served by the condition. Thus, not every probation condition bearing a remote, attenuated, tangential, or diaphanous connection to future criminal conduct can be considered reasonable.

Courts are not authorized to impose “conditions to shield probationers from exposure to people and circumstances that are less than ideal but are nonetheless unrelated to defendant’s current or prior offenses or any factor suggesting a risk of future criminal conduct. Accordingly, we conclude that the gang conditions are not reasonable under Lent and must be stricken.

Authority:

In re Ricardo P. (2019) 7 Cal.5th 1113, 1122

People v. Brandão (2012) 210 Cal.App.4th 568, 574, 577

Eighth Holding:

The trial court may order a defendant to pay for reasonable costs of probation; however, such costs are collateral and their payment cannot be made a condition of probation.

Accordingly, we will direct the trial court to modify the condition with this clarification.

Authority:

Brown v. Superior Court (2002) 101 Cal.App.4th 313, 321

Ninth Holding:

The defendant’s remaining arguments about the propriety of the order directing that all costs are to be borne by the defendant are forfeited for lack of objection at the time they were ordered.

Authority:

People v. Trujillo (2015) 60 Cal.4th 850, 858–859 [defendant waived arguments regarding ability to pay probation costs by failing to raise them in the trial court]

Discretion, Elements of crime, Sentencing

Case 001065

Posted on by Gary McCurdy

Error and/or relief

The trial court erred by imposing consecutive sentences for both assault (count 7) and carjacking (count 6). Remanded for resentencing.

First Holding:

The court was required under section 654 to stay the sentence imposed on one of the counts because both were based on the same physical act of driving a vehicle in a threatening manner. Section 654 allows the trial court to stay the sentence for either count 6 or count 7, at its discretion.

Authority:

PEN 654

Second Holding:

The enhancement for personal use of a firearm imposed on the carjacking count must be stricken because no evidence was presented that a firearm was employed during the commission of that offense and that the enhancement for infliction of great bodily injury on the murder count is prohibited by section 12022.7(g).

The Attorney General concedes the above enhancements must be stricken, noting that the information did not allege these enhancements and the jury made no such findings.

Authority:

PEN 12022.7(g)

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

Case 001053

Posted on by Gary McCurdy

Error and/or relief

The court erred in denying the defendant’s request for mental health diversion because the court failed to explain its reasons for denying the motion and, in doing so, may have applied the law incorrectly.

First Holding:

Mental health diversion allows the trial court to suspend criminal proceedings and potentially dismiss the charges if the defendant successfully completes mental health treatment. To grant diversion, the trial court must find that the defendant is both eligible for diversion and suitable for a mental health program.

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. The trial court shall find that the defendant’s mental disorder was a significant factor in the commission of the offense unless there is clear and convincing evidence that it was not a motivating factor, causal factor, or contributing factor to the defendant’s involvement in the alleged offense.

Authority:

People v. Flareau (2026) 118 Cal.App.5th 681, 689

Second Holding:

A defendant is suitable for diversion 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.

Authority:

People v. Flareau (2026) 118 Cal.App.5th 681, 689

Third Holding:

But even if the trial court finds that a defendant is eligible and suitable for diversion, the court retains discretion to deny diversion. This has been deemed residual discretion.

Authority:

People v. Flareau (2026) 118 Cal.App.5th 681, 689

Fourth Holding:

When a trial court considers public safety concerns in its suitability analysis, it is limited to assessing whether the defendant is likely to commit a “super strike” offense if released on mental health diversion. The trial court did not consider that likelihood.

(Gary note: section 1001.36 was amended by AB 46, signed into law June 29, 2026, effective January 1, 2027. Among other changes, the “unreasonable risk of danger to public safety” will no longer use the standard set forth as “super strikes” in section 1170.18.

(Until January 1, 2027, the relevant portion of section 1001.36(c)(4) reads, in part, “The defendant will not pose an unreasonable risk of danger to public safety, as defined in section 1170.18, if treated in the community.”

(But as of January 1, 2027, that aspect of the new section (1001.36(c)(1)(D)) reads, in part, “The defendant will not pose a substantial and undue risk to the physical safety of another person, if treated in the community.”

(If you have a client who seems ripe for mental health diversion, I suggest you hasten while the disqualifying factor remains at its high bar. Section 1170.18 defines specifically what a judge must consider the defendant is likely to do–commit a super strike as defined. Once AB 46 goes into effect, the standard gives far less precision on what constitutes undue risk to the physical safety of another person.)

Authority:

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

Fifth Holding:

The trial court’s comments about a lack of accountability and oversight if defendant were granted mental health diversion reflects a misunderstanding of the mental health diversion process. A person granted mental health diversion will be undergoing inpatient or outpatient treatment, and the statute requires the provider of the mental health treatment program in which the defendant is placed to provide regular reports to the court, the defense, and the prosecutor on the defendant’s progress in treatment

In addition, if the person is performing unsatisfactorily in the assigned program, or is charged with an additional offense or is engaging in criminal conduct during diversion, the court must hold a hearing to determine whether to, inter alia, modify treatment or reinstate criminal proceedings.

Authority:

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

Sixth Holding:

We must reverse unless the record clearly indicates that the trial court still would have denied defendant’s motion for mental health diversion even if the court had applied the law correctly.

Authority:

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

People v. Qualkinbush (2022) 79 Cal.App.5th 879, 891-892

Seventh Holding:

When, as here, we conditionally vacate a defendant’s plea agreement and remand for further mental health diversion proceedings, we necessarily must conditionally reverse the defendant’s sentence. Our reversal of the defendant’s sentence thus moots his other challenges to his sentence.

Authority:

People v. Qualkinbush (2022) 79 Cal.App.5th 879, 892

People v. Moine (2021) 62 Cal.App.5th 440, 452

People v. Frahs (2020) 9 Cal.5th 618, 640-641

People v. Rojas (2015) 237 Cal.App.4th 1298, 1301-1302 [appellant’s argument that trial court made sentencing errors held moot given remand for resentencing]

Amelioration, Discretion, Sentencing, Sixth Amendment, Standard of review

Case 001036

Posted on by Gary McCurdy

Error and/or relief

At the resentencing hearing under section 1172.75, the court misunderstood its discretion to reduce a 10-year section 12022.53(b) firearm enhancement and impose a lesser uncharged enhancement. The court violated the defendant’s constitutional rights by imposing an upper term sentence without a jury determination of aggravating factors. Accordingly, we will remand so the People may have an opportunity to retry the aggravating factors and for the court to exercise its sentencing discretion.

First Holding:

A sentencing court, in the interest of justice pursuant to section 1385, may strike or dismiss an enhancement otherwise required to be imposed under section 12022.53. This discretion includes imposing a lesser included, uncharged enhancement under statutes other than section 12022.53, such as section 12022.5(a).

Authority:

People v. Jasso (2025) 17 Cal.5th 646, 701

People v. McDavid (2024) 15 Cal.5th 1015, 1020-1021

People v. Tirado (2022) 12 Cal.5th 688, 692 [The statutory framework of section 12022.53 permits a court to strike the section 12022.53(d) enhancement found true by the jury and to impose a lesser uncharged statutory enhancement instead]

Second Holding:

A court unaware of its discretionary powers cannot exercise informed discretion. In this circumstance, it is almost always speculative for a reviewing court to say what the sentencing court would have done if it had known the scope of its discretionary powers at the time of sentencing.

Unless there is a clear indication from the sentencing court that it would be idle to do so, remand for resentencing is required. When the applicable law governing the defendant’s sentence has substantively changed after sentencing, it is almost always speculative for a reviewing court to say what the sentencing court would have done if it had known the scope of its discretionary powers at the time of sentencing.

Mere reliance on the length of the original sentence and attendant decisions, such as imposing consecutive sentences, imposing middle or upper term sentences, or declining to strike enhancements, is not sufficient to provide a clear indication of what a sentencing court might do on remand if it had been fully aware of the scope of its discretionary powers.

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 774

People v. Salazar (2023) 15 Cal.5th 416, 431

Third Holding:

As a matter of constitutional right, absent a stipulation or waiver, any aggravating fact other than a prior conviction relied upon to support an upper term sentence must be found true by a jury beyond a reasonable doubt.

Authority:

People v. Mitchell (2026) 19 Cal.5th 729, 739

People v. Wiley (2025) 17 Cal.5th 1069 [Under the federal Constitution’s Fifth and Sixth Amendments, a defendant is entitled to a jury trial on all aggravating facts, other than the bare fact of a prior conviction and its elements, that expose the defendant to imposition of a sentence more serious than the statutorily provided midterm.]

Fourth Holding:

Determinations that a defendant’s prior convictions are of increasing seriousness and his or her unsatisfactory performance on probation require a jury determination of those facts before they can be used to justify an upper term sentence. Finding increasing seriousness of prior convictions requires a qualitative assessment of the offenses’ time, location, character, and purpose.

A defendant’s probation performance could involve consideration of evidence of misconduct not previously adjudicated in a criminal trial; and it would also involve proving the defendant was ordered to serve a term of probation and remained on probation at the time of the new offense. Thus, the determination involves circumstances clearly going beyond the fact of prior conviction and its elements.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1082-1083

Erlinger v. United States (2024) 602 U.S. 821, 840

Fifth Holding:

A California trial court’s reliance on information in a probation department presentence report to impose an upper term sentence is now precluded.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1081, fn. 5

Sixth Holding:

Under the Fifth and Sixth Amendments, virtually any fact that increases the prescribed range of penalties to which a criminal defendant is exposed must be resolved by a unanimous jury beyond a reasonable doubt (or freely admitted in a guilty plea). A narrow exception permits judges to find only the fact of a prior conviction. Under that exception, a judge may do no more, consistent with the Sixth Amendment, than determine what crime, with what elements, the defendant was convicted of.

Authority:

Erlinger v. United States (2024) 602 U.S. 821, 843

Seventh Holding:

A trial court has discretion to reconsider the entire sentence on a remand for resentencing. Because we remand for resentencing here, the proper course is to permit the court to exercise its discretion as to the entire sentence and all of its sentencing choices, including whether to strike or dismiss the defendant’s enhancements under section 1385(c).

Authority:

People v. Trammel (2023) 97 Cal.App.5th 415, 435 [a resentencing court is permitted to reconsider all of its discretionary sentencing choices]

People v. Cutting (2019) 42 Cal.App.5th 344, 348

People v. Hill (1986) 185 Cal.App.3d 831, 834 [When a case is remanded for resentencing by an appellate court, the trial court is entitled to consider the entire sentencing scheme. Not limited to merely striking illegal portions, the trial court may reconsider all sentencing choices.]

Amelioration, Elements of crime, Jury trial, Pleading, Retroactivity, Sentencing

Case 001032

Posted on by Gary McCurdy

Error and/or relief

At the resentencing hearing under section 1172.75, it was error for the court to impose a term of prison under section 12022.53(d), an enhancement that was not pleaded or proved on the count for which it was imposed. It was also error for the court not to consider the impact of AB 333’s amendments on criminal gang activity laws on the defendant’s sentence.

First Holding:

Section 12022.53(d) provides that a person who, in the commission of a felony specified in section 246(a), or section 26100(c) or (d), personally and intentionally discharges a firearm and proximately causes great bodily injury, as defined in section 12022.7, or death, to a person other than an accomplice, shall be punished by an additional and consecutive term of imprisonment in the state prison for 25 years to life.

Section 12022.53(e)(1) provides that the enhancements provided in this section shall apply to any person who is a principal in the commission of an offense if both of the following are pled and proved:

(A) The person violated subdivision (b) of Section 186.22.

(B) Any principal in the offense committed any act specified in subdivision (b), (c), or (d).

In other words, a firearm enhancement under section 12022.53(e)(1) imposes vicarious liability for another’s personal use of a firearm on aiders and abettors who commit crimes in participation with a criminal street gang.

Authority:

PEN 12022.53

People v. Garcia (2002) 28 Cal.4th 1166, 1171

Second Holding:

Here, the vicarious gang-related firearm enhancement under section 12022.53(d) and (e)(1) was alleged as to count 1. The jury found that enhancement true, but it made no finding defendant personally and intentionally discharged a firearm during the commission of the offense proximately causing GBI or death to a nonaccomplice as required under section 12022.53(d). The verdict form reflects the jury found true the vicarious gang-related firearm enhancement under section 12022.53(e)(1), but does not include a finding regarding the personal and intentional discharge firearm enhancement under section 12022.53(d). This is fatal to imposition of a firearm enhancement under section 12022.53(d).

Further, the trial court dismissed the gang enhancement that was charged, which resulted in section 12022.53(e) being inapplicable. The section 12022.53(d) firearm enhancement must be stricken.

Authority:

PEN 12022.53

Third Holding:

On resentencing, the prosecution asked that if the trial court was not going to reimpose the gang enhancement, that it dismiss the enhancement under AB 333, which would permit the prosecution to retry the gang enhancement to prove that it was valid under the AB 333 amendments. The court declined to decide the retroactivity of AB 333, and instead dismissed it in the interest of justice under section 1385.

By declining to make a decision about the retroactive application of AB 333, the trial court potentially deprived the People of their opportunity to retry the gang enhancement, and the court did not adequately consider whether AB 333 would affect the imposition of the gang-related vicarious firearm enhancement. Without considering the full effect of AB 333, the court exercised less than fully informed sentencing discretion. This was an abuse of discretion.

Authority:

People v. Gutierrez (2014) 58 Cal.4th 1354, 1391 [a court that is unaware of the scope of its discretionary powers can no more exercise informed discretion than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant’s record]

Fourth Holding:

We remand for a full resentencing. As the firearm enhancement under section 12022.53(d) was not found true by the jury and was unlawfully imposed, it shall be stricken. Given this changed circumstance, resentencing is required to allow the trial court to exercise its sentencing discretion anew.

When a case is remanded for resentencing by an appellate court, the trial court is entitled to consider the entire sentencing scheme. Not limited to merely striking illegal portions, the trial court may reconsider all sentencing choices. This rule is justified because an aggregate prison term is not a series of separate independent terms, but one term made up of interdependent components. The invalidity of one component infects the entire scheme.

Moreover, because AB 333 applies retroactively, the trial court must apply these changes in the law and consider, in the first instance, whether the jury’s gang enhancement finding is viable, and, if not, the People may elect to retry the enhancement.

In the absence of the gang enhancement, the gang-related vicarious firearm enhancement under section 12022.53(d), (e)(1) cannot be imposed as it is predicated on a pled and proven section 186.22(b) gang enhancement.

(Gary note: I was a bit confused by the presence of this observation, because it appeared to me that the appellate court stated that the jury verdict failed to make a finding of personal use by a participant; I cite the principle here, but I was surprised to see it in this case. Is the court saying that the prosecution gets another opportunity to try the 12022.53(d) enhancement that was missing a vital component? I may have misread something–the opinion dealt with a very complicated set of circumstances, peculiar to this case, that arose in the resentencing)

Authority:

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

People v. Buycks (2018) 5 Cal.5th 857, 893 [when part of a sentence is stricken on review, on remand for resentencing a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances]

People v. Hill (1986) 185 Cal.App.3d 831, 834

People v. Sek (2022) 74 Cal.App.5th 657, 668, 669–670 [by requiring proof that benefit to gang was more than reputational, AB 333 added a new element to the enhancement; prosecution was entitled to an opportunity to retry the gang enhancement upon remand]

People v. Cooper (2023) 14 Cal.5th 735, 746–747 [where newly required elements were never tried to jury, remedy is to remand and give the People an opportunity to retry affected charges]

Fifth Holding:

Upon resentencing, subject to the principles articulated in Henderson and its progeny, the trial court may not impose a greater aggregate sentence than that imposed at the resentencing.

Authority:

People v. Henderson (1963) 60 Cal.2d 482, 495–497

People v. Ali (1967) 66 Cal.2d 277, 281

People v. Hanson (2000) 23 Cal.4th 355, 357

People v. Trammel (2023) 97 Cal.App.5th 415, 434

People v. Serrato (1973) 9 Cal.3d 753, 763–764, [exception to Henderson applies only to unauthorized sentences that were unlawfully lenient to the detriment of the People]

Appellate Principles, Discretion, Effective assistance of counsel, Sentencing, Sixth Amendment, Standard of review

Case 001027

Posted on by Gary McCurdy

Error and/or relief

The court erred in imposing the upper term on factors that were not submitted to a jury for proof beyond a reasonable doubt. The prosecution concedes the court prejudicially erred, but argues that the defendant forfeited the issue by failing to raise it below. Remanded for resentencing. On remand, the prosecution may choose to prove the necessary aggravating circumstances by any appropriate vehicle.

First Holding:

In order to encourage prompt detection and correction of error, and to reduce the number of unnecessary appellate claims, reviewing courts have required parties to raise certain issues at the time of sentencing. In such cases, lack of a timely and meaningful objection forfeits or waives the claim. This includes complaints about the manner in which the trial court exercises its sentencing discretion and articulates its supporting reasons.

Authority:

People v. Scott (1994) 9 Cal.4th 331, 351, 356

Second Holding:

Achane held that a defendant forfeited a claim that a low-term sentence was mandated under section 1170(b)(6), which requires a factual basis that triggers the low term. Presented with a similar issue, Frederickson that where there was a presumption of a particular term without any factual findings, a defendant did not forfeit the benefit of the presumption, which is not subject to forfeiture. Lopez-Tapia sided with Frederickson.

Authority:

People v. Achane (2023) 92 Cal.App.5th 1037, 1044

People v. Frederickson (2023) 90 Cal.App.5th 984, 994 fn.8.

People v. Lopez-Tapia (2026) 120 Cal.App.5th 690, 697

Third Holding:

Here, unlike the cases involving a low term presumption when facts support it, the defendant needed make no argument nor offer any evidence to obtain the benefit of the middle-term presumption, nor to trigger the requirement that the trial court state the reasons for choosing a higher sentence. What he is arguing for was required by statute.

Authority:

PEN 1170(b)(2), (b)(5)

Fourth Holding:

In any event, neither forfeiture nor application of the forfeiture rule is automatic. An appellate court may choose to refrain from applying the forfeiture bar, under its discretion. Here, we decline to decide whether there was any forfeiture; even if there were, we would exercise our discretion to address the issue on the merits to forestall a claim of ineffective assistance of counsel.

Authority:

People v. McCullough (2013) 56 Cal.4th 589, 593

People v. Lua (2017) 10 Cal.App.5th 1004, 1014

People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6

People v. Crittenden (1994) 9 Cal.4th 83, 146

Fifth Holding:

Under section 1170(b)(2) the court may impose a sentence exceeding the middle term only when there are circumstances in aggravation and the facts underlying those circumstances have been stipulated to by the defendant or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial.

A defendant is entitled to a jury trial on all aggravating facts, other than the bare fact of a prior conviction and its elements, that expose the defendant to imposition of a sentence more serious than the statutorily provided midterm. The burden is on the prosecution to prove beyond a reasonable doubt the facts relied on to justify an upper term sentence.

If those facts are properly proven, the court may take them into account and exercise its discretion under section 1170(b) to determine what sentence to impose. The court shall set forth on the record the facts and reasons for choosing the sentence imposed.

Authority:

PEN 1170(b)(2), (b)(5)

People v. Wiley (2025) 17 Cal.5th 1069, 1086

Sixth 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. As the prosecution concedes here, we cannot find the error to have been harmless beyond a reasonable doubt.

Authority:

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

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

Due process, Duty of counsel, Duty of the court, Effective assistance of counsel, Jurisdiction, Sentencing, Standard of review

Case 001026

Posted on by Gary McCurdy

Error and/or relief

Twenty-one years after his conviction of murder committed when he was 20, the defendant filed a motion for a hearing under Franklin. The court (Judge A) appointed counsel and set a hearing date to determine whether the defendant was entitled to a full evidence preservation hearing. The defendant’s attorney ultimately filed a motion to be relieved as counsel, requesting that the matter be taken off the calendar, stating that the defendant was not entitled to a Franklin hearing under Hardin. There was no indication that counsel had discussed this with the defendant. The defendant was not present. The court (Judge B) relieved counsel and took the matter off calendar.

The order relieving defendant’s appointed counsel is reversed. Upon remand, the trial court shall issue an order reinstating counsel and set the request for a formal, noticed hearing in which defendant is given notice and an opportunity to respond.

To the extent defendant maintains upon remand that appointed counsel’s representation is inadequate or ineffective, the trial court is directed to consider any such claim under the principles set forth in People v. Marsden (1970) 2 Cal.3d 118

The trial court is further directed to set a new hearing for defendant’s Franklin motion if the defendant requests such relief upon remand.

First Holding:

Section 3051 offers youth offenders committed for long prison terms an opportunity for early release on parole. It requires the Board of Parole Hearings to conduct a youth offender parole eligibility hearing to determine if, based on certain criteria involving the controlling offense, the offender is eligible for parole. The hearing must provide for a meaningful opportunity to obtain release, and includes an assessment of the offender’s growth and maturity that takes into consideration the diminished culpability of youth as compared to that of adults and the hallmark features of youth.

Given these factors, the California Supreme Court held in Franklin that when a juvenile offender receives an indeterminate life sentence, the offender must be given adequate opportunity at sentencing to make a record of mitigating evidence tied to his youth.

Authority:

PEN 3051

People v. Williams (2024) 17 Cal.5th 99, 113

People v. Medrano (2019) 40 Cal.App.5th 961, 967

People v. Franklin (2016) 63 Cal.4th 261, 269

Second Holding:

In Cook, the California Supreme Court extended the availability of a Franklin hearing to a juvenile offender whose conviction and sentence have become final. Specifically, it held that an offender entitled to a youth offender parole hearing may seek the remedy of a Franklin proceeding even though the offender’s sentence is otherwise final. To initiate such a proceeding, an offender should file a motion requesting a hearing under the authority of section 1203.01.

Authority:

PEN 1203.01

People v. Ngo (2023) 89 Cal.App.5th 116, 127

In re Cook (2019) 7 Cal.5th 439, 451

People v. Howard (2021) 74 Cal.App.5th 141, 150

Third Holding:

The proper avenue to request a Franklin proceeding is to file a motion in superior court under the original caption and case number, citing the authority of section 1203.01 and Cook. The motion should establish the inmate’s entitlement to a youth offender parole hearing and indicate when such hearing is anticipated to take place, or if one or more hearings have already occurred. Nothing in Cook indicates the motion must describe with precision the evidence the offender seeks to introduce.

There are no mandatory pleading requirements for a Franklin motion, and the required showing to initiate the process for a Franklin proceeding is minimal: due to the limited resources generally available to inmates, the Cook court reasonably envisioned a simple pleading mechanism to get the process started.

Authority:

People v. Howard (2021) 74 Cal.App.5th 141, 150

People v. Lipptrapp (2021) 59 Cal.App.5th 886, 896

Fourth Holding:

A legally sufficient Franklin motion does not automatically guarantee a defendant the right to do so. Rather, such a motion only initiates the process for a Franklin proceeding. Based solely on the motion, the trial court may immediately find a Franklin proceeding is warranted. The trial court may also exercise its discretion to conduct this process efficiently, ensuring that the information introduced is relevant, noncumulative, and otherwise in accord with the governing rules, statutes, and regulations.

The court may, for example, require an offer of proof regarding the evidence the offender seeks to present, so that it can determine whether such evidence is relevant to youth-related factors and meaningfully adds to the already available record. It may also determine whether testimony is appropriate, or if other types of evidentiary submissions will suffice. After allowing a defendant an opportunity of this nature, the court may deny further proceedings if it finds they are unlikely to produce fruitful evidence.

Authority:

People v. Howard (2021) 74 Cal.App.5th 141, 152

In re Cook (2019) 7 Cal.5th 439, 149

Fifth Holding:

Courts have subsequently held that a Franklin motion may also be used to raise a challenge to section 3051’s limitations on the availability of youth offender parole hearings on equal protection grounds.

While the California Supreme Court has concluded that section 3051’s exclusion of offenders who are serving sentences of life in prison without the possibility of parole for a crime committed after the age of 18 from youth offender parole eligibility is not facially unconstitutional, it expressly left the door open to the potential validity of challenges to other exclusions set forth in section 3051 as well as as-applied challenges based on particular special circumstances or the factual circumstances of individual cases.

Authority:

People v. Sands (2021) 70 Cal.App.5th 193, 201-202

People v. Briscoe (2024) 105 Cal.App.5th 479, 486-489

People v. Hardin (2024) 15 Cal.5th 834, 864

Sixth Holding:

Generally, a trial court’s removal of appointed counsel for an indigent defendant is reviewed for abuse of discretion. Here, we have determined the trial court’s order granting appointed counsel’s request to be relieved constituted an abuse of discretion.

Authority:

People v. Mungia (2008) 44 Cal.4th 1101, 1119

People v. Cole (2004) 33 Cal.4th 1158, 1190

People v. Wright (2021) 12 Cal.5th 419, 440

Seventh Holding:

Generally, both the United States Constitution and California Constitution guarantee a basic right of due process, and the fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner.

The Supreme Court has held that a prisoner may derive a due process liberty interest from either the Constitution or state law. When the asserted interest is derived exclusively from state law, it will be recognized as within the scope of due process liberty if the state statute protects the interest by permitting its forfeiture only on the happening of specified conditions.

Authority:

U.S. Const., 14th Amend.

Cal. Const., art. I, secs. 7, 15

People v. Allen (2008) 44 Cal.4th 843, 869

People v. Ramirez (1979) 25 Cal.3d 260, 265

Eighth Holding:

Generally, having undertaken the defense of a criminal case an attorney must continue with his services until he is released by the client or by the court. He may apply to the court for release from further services and for good cause shown may be released, but he may not abandon his representation at will. In light of this principle, it is established that the procedural requirements of sections 284 and 285 of the Code of Civil Procedure govern a change of attorney in a criminal, as well as in a civil, proceeding.

These statutes specify that in order to withdraw from representation, an attorney must either obtain the consent of the client or bring a formal application in the trial court with notice to the client. The legislative purpose of these provisions is to provide certain safeguards to protect the accused.

Authority:

CCP 284

CCP 285

People v. Prince (1968) 268 Cal.App.2d 398, 404, 406

Smith v. Superior Court of Los Angeles County (1968) 68 Cal.2d 547, 558-559 [The sole statutory authority for the removal of counsel is Code of Civil Procedure section 284. That statute is applicable in criminal cases.]

In re Martinez (1959) 52 Cal.2d 808, 813

People v. Bouchard (1957) 49 Cal.2d 438, 440

People v. Kerfoot (1960) 184 Cal.App.2d 622, 636

Ninth Holding:

Here, the trial court granted appointed counsel’s request to be relieved without complying with the statutory safeguards intended to afford defendant notice and an opportunity to be heard. The trial court conducted a hearing and granted the request the day after it was filed.

There is nothing in the record to show that defendant received any notice of appointed counsel’s request to be relieved. Nor was defendant present at the hearing. Such a procedure clearly violated defendant’s right to due process. And an order made in violation of a party’s due process right to notice and an opportunity to be heard constitutes an abuse of discretion.

Authority:

People v. Kerfoot (1960) 184 Cal.App.2d 622, 636 [Adequacy of notice is an element of due process of law. There is no due process of law in the complete absence of any notice.]

People v. Williams (2021) 65 Cal.App.5th 828, 833 [Due process requires notice and an opportunity to be heard even where statutory procedures are unclear.]

People v. Johnson (1984) 157 Cal.App.3d Supp. 1, 5

Tenth Holding:

It is well established that a trial judge ordinarily may reconsider his or her own prejudgment rulings. There are limits, however, on the authority of one superior court judge to set aside the order of another judge of the same court. Under article VI, section 4, of the California Constitution, one judge or department of the superior court cannot enjoin, restrain, or otherwise interfere with the judicial act of another judge or department of the superior court.

This rule prevents a trial court judge from acting as a one-judge appellate court over another judge. This is true even if the first judge committed legal error in ruling on the matter. The rule also bars a second judge from reconsidering another judge’s discretionary appointment of counsel.

Here, the order relieving counsel was made by a different judge than the one who previously appointed counsel and set the Franklin motion for a hearing.

The record shows that the first judge reviewed defendant’s Franklin motion and, based upon that review, appointed counsel and set the matter for a hearing. Thus, the question of whether defendant had established a prima facie showing sufficient to entitle him to appointment of counsel was already considered and decided by the first judge.

Even if that determination was erroneous, the second judge could not relieve counsel by purportedly reviewing the sufficiency of defendant’s prima facie showing anew and determining that it was inadequate to warrant appointment of counsel. Doing so would have constituted an impermissible reconsideration.

To be clear, a motion to be relieved may be heard by a judge other than the one who initially appointed counsel. However, the motion must be determined on its own merits based upon the showing and arguments presented in conjunction with that request.

Authority:

Calif. Const. art VI, sec. 4

People v. Waldon (2023) 14 Cal.5th 288, 306

In re Alberto (2002) 102 Cal.App.4th 421, 426-431 [second judge could not reconsider bail set by first judge even if first judge failed to correctly apply statutes in setting bail]

People v. Goodwillie (2007) 147 Cal.App.4th 695, 712-713 [trial judge erred by relieving advisory counsel previously appointed by another judge]

Eleventh Holding:

In our view, the error in this case is akin to structural error requiring reversal. Typically, a defendant who has established error under state law must demonstrate there is a reasonable probability that in the absence of the error he or she would have obtained a more favorable result. However, under the California constitutional harmless-error provision some errors are not susceptible to the ordinary or generally applicable harmless-error analysis.

The kinds of errors that, regardless of the evidence, may result in a miscarriage of justice because they operate to deny a criminal defendant the constitutionally required orderly legal procedure all involve fundamental structural defects in the judicial proceedings.

Most errors are amenable to harmless error review because they can be quantitatively assessed in the context of other evidence presented.

Structural defects, on the other hand, defy analysis by harmless-error standards because they are not simply an error in the trial process, but rather an error affecting the framework within which the trial proceeds. A structural error requires per se reversal because it cannot be fairly determined how a trial would have been resolved if the grave error had not occurred.

Authority:

People v. Anzalone (2013) 56 Cal.4th 545, 553

People v. Lewis (2025) 111 Cal.App.5th 1078, 1111

Discretion, Duty of the court, Pleading, Probation Parole PRCS, Sentencing, Standard of review

Case 001023

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in summarily denying the defendant’s motion filed under Franklin and Penal Code section 1203.01 for a hearing to set forth youth-related evidence for consideration at future parole hearings.

We conclude that the trial court erred by denying the defendant’s motion absent evidence that the defendant had past opportunities to present youth-related evidence and absent information regarding the substance of the evidence that the defendant intended to present.

We decline to issue an order that the trial court grant the request for a Franklin hearing. We simply direct the court to hold a proper hearing on the motion to determine whether a Franklin hearing is warranted.

First Holding:

Section 3051(a)(1) provides for a youth offender parole hearing by the Board of Parole Hearings for the purpose of reviewing the parole suitability of any prisoner who was 25 years of age or younger at the time of his or her controlling offense.

Section 4801(c) provides that, when a prisoner committed his or her controlling offense, as defined in section 3051(a), when he or she was 25 years of age or younger, the board, in reviewing a prisoner’s suitability for parole pursuant to section 3041.5, shall give great weight to the diminished culpability of youth as compared to adults, the hallmark features of youth, and any subsequent growth and increased maturity of the prisoner in accordance with relevant case law.

Authority:

PEN 3051

PEN 4801(c)

Second Holding:

In Franklin, the Supreme Court held a defendant who did not have an opportunity to make a record of mitigating youth-related factors relevant to a later youth offender parole hearing should have an opportunity to make a record on remand.

The court explained that sections 3051 and 4801 contemplate that information regarding the juvenile offender’s characteristics and circumstances at the time of the offense will be available at a youth offender parole hearing to facilitate the Board’s consideration. Assembling such statements about the individual before the crime is typically a task more easily done at or near the time of the juvenile’s offense rather than decades later when memories have faded, records may have been lost or destroyed, or family or community members may have relocated or passed away.

The Supreme Court remanded the matter to determine whether the defendant was afforded sufficient opportunity to make a record of information relevant to his eventual youth offender parole hearing, and if not, to allow the defendant to place on the record any documents, evaluations, or testimony (subject to cross-examination) that may be relevant at his eventual youth offender parole hearing, and the prosecution likewise may put on the record any evidence that demonstrates the juvenile offender’s culpability or cognitive maturity, or otherwise bears on the influence of youth-related factors.

Authority:

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

Third Holding:

In Cook, the Supreme Court held that a juvenile offender with a final judgment could move for a postjudgment proceeding under section 1203.01, to present evidence of youth-related factors. The Cook court reasoned that recognizing the court’s authority under section 1203.01 to gather youth offender evidence effectuates sections 3051 and 4801.

For inmates who seek to preserve evidence following a final judgment, the proper avenue 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 that establishes the inmate’s entitlement to a youth offender parole hearing and indicates when such hearing is anticipated to take place, or if one or more hearings have already occurred.

Consistent with Franklin and the court’s inherent authority, the offender shall have the opportunity to place on the record any documents, evaluations, or testimony (subject to cross-examination) that may be relevant at his eventual youth offender parole hearing, and the prosecution likewise may put on the record any evidence that demonstrates the juvenile offender’s culpability or cognitive maturity, or otherwise bears on the influence of youth-related factors.

Neither the passage of significant time, nor the fact that the defendant has had prior parole hearings is a bar to the court granting a Franklin hearing. The Legislature intended that the benefits of youth offender parole hearings be available even to those prisoners with decades-old convictions.

Authority:

PEN 1203.1

In re Cook (2019) 7 Cal.5th 439, 453, 458-459

People v. Benzler (2021) 72 Cal.App.5th 743, 751

Fourth Holding:

We review the trial court’s denial of a Franklin proceeding for abuse of discretion. In deciding whether the trial court has abused its discretion we are required to 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:

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

Fifth Holding:

The defendant’s motion contained sufficient information. Nothing in Cook indicates the motion bust describe with precision the vidence the offender seeks to introduce. The court’s commentary in Cook about what a motion should include is not the same as creating mandatory pleading requirements.

Courts have found there are no mandatory pleading requirements for a Franklin motion, and the required showing to initiate the process for a Franklin proceeding is minimal: due to the limited resources generally available to inmates, the Cook court reasonably envisioned a simple pleading mechanism to get the process started.

Authority:

People v. Howard (2021) 74 Cal.App.5th 141, 150

People v. Lipptrapp (2021) 59 Cal.App.5th 886, 896

Discretion, Juveniles, Standard of review

Case 001022

Posted on by Gary McCurdy

Error and/or relief

We reverse the juvenile court’s order releasing information to [Person A] pertaining to the minor’s juvenile court proceedings, because the information accompanying the request was insufficient to justify the disclosure of confidential juvenile court matters.

First Holding:

he petition for release stated simply that the records pertaining to the minor’s juvenile file were being requested because of an ongoing law enforcement investigation. The petition did not provide any information about the law enforcement investigation. It did not indicate who was or were the subjects of the investigation. It does not state that the minor is a subject of, or somehow involved in, the investigation.

Even assuming the petitioner is a law enforcement employee, it does not explain why the requested records are necessary or have substantial relevance to a legitimate need of the petition (or the law enforcement agency. It does not describe in detail the reasons the file is being sought and its relevance to the proceeding or other purpose for which petitioner wishes to inspect or obtain the file.

The petition lacks any details demonstrating good cause to grant the request.

Authority:

Cal. Rules of Court, rule 5.552(a)(2)

Second Holding:

Welfare and Institutions Code section 827 authorizes a case file to be inspected without a court order by the attorneys for the parties, judges, referees, other hearing officers, probation officers, and law enforcement officers who are actively participating in criminal or juvenile proceedings involving the minor.

If [Person A], as a law enforcement officer, is actively participating in criminal or juvenile proceedings involving the minor, she would have been authorized to access the file without a court order and would not have needed to file a petition.

Authority:

WIC 827(a)(1)(E)

Third Holding:

The Legislature has expressly stated that juvenile court records, in general, should be confidential. Section 827 sets forth detailed provisions to protect this confidentiality. It specifies who is authorized to inspect case files without a court order. Section 827 also contains provisions that permit unauthorized persons to directly petition the juvenile court for access to the confidential records.

Under section 827 the juvenile court has exclusive authority to determine whether and to what extent to grant access to confidential juvenile records to unauthorized persons. This statutory scheme reflects a legislative determination that the juvenile court has both the sensitivity and expertise to make decisions about access to juvenile records.

Authority:

WIC 827

J.E. v. Superior Court (2014) 223 Cal.App.4th 1329, 1337

Fourth Holding:

Rule 5.552 dictates the procedure for, and judicial review of, a request to access a juvenile case file pursuant to section 827.

The petitioner must identify the specific file sought and describe in detail the reasons the file is being sought and its relevance to the proceeding or other purpose for which petitioner wishes to inspect or obtain the file.

The petitioner bears the burden to show good cause justifying access to the records. If the petitioner does not show good cause, the court must deny the petition summarily.

If there is good cause, the court may set a hearing. Whether or not the court conducts a hearing, if the court determines that there may be information or documents in the records sought to which the petitioner may be entitled, the court must conduct an in camera review of the case file and any objections.

In determining whether to authorize disclosure, the court must balance the interests of the child, the interests of the petitioner, and the interests of the public and may permit access only insofar as is necessary, and only if petitioner shows by a preponderance of the evidence that the records requested are necessary and have substantial relevance to the legitimate need of the petitioner. To grant the petition, the court must find that the need for access outweighs the policy considerations favoring confidentiality of the juvenile case file.

Authority:

Cal. Rules of Court, rule 5.552

Fifth Holding:

Generally, a juvenile court has broad and exclusive authority to determine whether and to what extent to grant access to confidential juvenile records pursuant to section 827.

Review of a juvenile court’s decision to release juvenile records under section 827 is 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 trial court’s findings of fact are reviewed for substantial evidence, its conclusions of law are reviewed de novo, and its application of the law to the facts is reversible only if arbitrary and capricious.

Here, the juvenile court applied the law dictating petitions to access juvenile case files to undisputed facts. Therefore, we review whether its decision was arbitrary and capricious.

Authority:

In re Elijah S. (2005) 125 Cal.App.4th 1532, 1541

Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 711–712

Amelioration, Discretion, Sentencing, Standard of review

Case 001010

Posted on by Gary McCurdy

Error and/or relief

In resentencing the defendant, the court abused its discretion in not giving proper consideration to whether to strike prior strike convictions. Remanded for proper consideration.

First Holding:

Under section 1172.1, a trial court may recall and resentence “at any time” upon the recommendation of the Secretary of the Department of Corrections and Rehabilitation, the Board of Parole Hearings, the district attorney of the county in which the defendant was sentenced, or the Attorney General if the Department of Justice originally prosecuted the case.

Effective January 1, 2024, a trial court may recall a sentence and resentence a defendant on its own motion “at any time if the applicable sentencing laws at the time of original sentencing are subsequently changed by new statutory authority or case law.

Once a trial court decides to recall and resentence, it may either reduce the sentence by modification or vacate the conviction and impose judgment on any necessarily included lesser offense or lesser related offense, whether or not that offense was charged in the original pleading.

In resentencing the defendant in the same manner as if they had not previously been sentenced, the resentencing court shall consider if the defendant has experienced psychological, physical, or childhood trauma, including, but not limited to, abuse, neglect, exploitation, or sexual violence, and whether those circumstances were a contributing factor in the commission of the offense.

Authority:

PEN 1172.1

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.

Section 1385(c)(2) further provides that, 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 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.

‘Endanger public safety’ means there is a likelihood that the dismissal of the enhancement would result in physical injury or other serious danger to others. Accordingly, if the court finds that dismissal of an enhancement would endanger public safety, then the court need not consider the listed mitigating circumstances.

Authority:

PEN 1385

People v. Mendoza (2023) 88 Cal.App.5th 287, 296

Third Holding:

A court’s decision not to strike a prior serious felony enhancement is reviewed for abuse of discretion.

Authority:

People v. Shaw (2020) 56 Cal.App.5th 582, 585

People v. Jefferson (2016) 1 Cal.App.5th 235, 242–243 [a trial court’s exercise of discretion must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice]

Fourth 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 1024,1029

Fifth Holding:

A trial court has discretion under the Three Strikes law to dismiss or vacate prior conviction allegations or findings in the furtherance of justice. In exercising its discretion, the court may give no weight whatsoever to factors extrinsic to the Three Strikes scheme.

Instead, preponderant weight must be accorded to factors intrinsic to the scheme, such the nature and circumstances of the defendant’s present felonies and the prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects. In considering these intrinsic factors the court must determine whether the defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.

While the purpose of the Three Strikes law was to ensure longer prison sentences, the “overarching consideration” and “underlying purpose” in striking prior conviction allegations is the avoidance of unjust sentences.

Authority:

PEN 1385(a)

People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 530-531

People v. Williams (1998) 17 Cal.4th 148, 161

People v. Garcia (1999) 20 Cal.4th 490, 498–500

Sixth Holding:

Abuse of discretion in failing to strike a prior conviction occurs in limited circumstances: where the trial court is not aware of its discretion; where the trial court considers impermissible factors; or where applying the Three Strikes law would produce an arbitrary, capricious, or patently absurd result under the specific facts of a particular case.

A reviewing court’s disagreement with the trial court’s weighing of proper factors (as distinct from the trial court’s reliance on improper factors in the weighing process) does not constitute an abuse of discretion.

We conclude from this record that the trial court failed to balance the appropriate factors set forth in Williams, that is, the defendant’s personal background, character, and prospects, and the specifics of his criminal history, the characteristics of the present offense for which he was being resentenced, or if a shorter sentence would accommodate risks to public safety.

Significantly, courts have reversed the denial of dismissal of prior strikes in instances where the prior strikes were far more serious than the defendant’s.

(Gary note: I have left out the appellate court’s recitation of facts peculiar to this defendant and the facts in this case, but court determined that the lower court had not given proper consideration of those factors. It remanded for a proper consideration.)

Authority:

People v. Carmony (2004) 33 Cal.4th 367, 378-379

People v. Dryden (2021) 60 Cal.App.5th 1007, 1029

People v. Avila (2020) 57 Cal.App.5th 1134, 1140–1141 [defendant’s three previous strikes were two robberies and assault with a knife]

Discretion, Sentencing

Case 001007

Posted on by Gary McCurdy

Error and/or relief

This is an appeal after resentencing under section 1172.75. The court erred in believing that the original sentence was unauthorized because full consecutive sentences on two of the counts had been mandatory. Thus, it was error for the court to vacate the original imposition of concurrent sentences and impose them consecutively.

Holding:

The trial court was mistaken in its determination that the original sentence was unauthorized because full consecutive sentences on both counts were mandatory.

Both crimes were committed on the same occasion on the same victim. Therefore, while section 667.6(c) authorized consecutive sentencing on these two offenses, imposing full consecutive sentences for both offenses was not mandatory. Similarly, at resentencing, the court was not required to impose a full consecutive sentence.

The trial court appears not to have been aware of its discretion in this regard. We therefore remand to permit the court to resentence the defendant pursuant to section 1172.75.

Authority:

PEN 667.6(c)

People v. Deloza (1998) 18 Cal.4th 585, 596–597, 600 [remanding for resentencing where trial court misunderstood the scope of its discretion to impose concurrent sentences and erroneously believed consecutive sentences were mandatory]

People v. Flores (2020) 9 Cal.5th 371, 431–432 [when a trial court misunderstands or is unaware of the scope of its sentencing discretion, a reviewing court must remand for resentencing unless the record clearly indicates the trial court would have reached the same conclusion even if it had been aware that it had such discretion]

Discretion, Standard of review, Sufficiency of and substantial evidence

Case 000999

Posted on by Gary McCurdy

Error and/or relief

The court abused its discretion by denying the defendant’s request for mental health diversion because its finding that he is ineligible for diversion is not supported by substantial evidence.

First Holding:

The Legislature enacted sections 1001.35 and 1001.36 to authorize trial courts to grant pretrial mental health diversion to defendants diagnosed with qualifying mental disorders. To be eligible for mental health diversion, a defendant must meet two requirements.

One, the defendant must have been diagnosed within the past five years with a mental disorder identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders.

And two, the defendant’s mental disorder must be a significant factor in the commission of the offense.

Authority:

PEN 1001.36(b)

Gomez v. Superior Court (2025) 113 Cal.App.5th 671, 677

Lacour v. Superior Court (2025) 110 Cal.App.5th 391, 400

Second Holding:

Among the express purposes of the diversion program is to increase diversion of individuals with mental disorders to mitigate the individuals entry and reentry into the criminal justice system while protecting public safety.

Under section 1001.36(b), the court must 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. Eligibility no longer turned on findings to the court’s satisfaction.

The statute requires the court to find that the defendant’s mental disorder was a significant factor unless clear and convincing evidence demonstrates otherwise. And it is the prosecution’s burden to provide clear and convincing evidence to overcome the presumption.

Authority:

Siam v. Superior Court (2026) 118 Cal.App.5th 67, 80

People v. Harlow (2025) 113 Cal.App.5th 485, 490

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

People v. Cabalar (2025) 117 Cal.App.5th 41, 52

Gomez v. Superior Court (2025) 113 Cal.App.5th 671, 688

Third Holding:

Once a defendant meets the eligibility requirements, the trial court must then determine whether a defendant is suitable for diversion using the four criteria outlined in section 1001.36(c): (1) A qualified mental health expert has determined the defendant’s symptoms would respond to mental health treatment; (2) the defendant has consented to diversion and waived the right to a speedy trial; (3) the defendant has agreed to comply with treatment as a condition of diversion, and (4) the court has determined the defendant will not pose an unreasonable risk of danger to public safety if treated in the community.

Authority:

PEN 1001.36(c)

Lacour v. Superior Court (2025) 110 Cal.App.5th 391, 400-401

Fourth Holding:

We review a trial court’s ruling on an application for mental health diversion for abuse of discretion and its factual findings for substantial evidence. A court abuses its discretion when it applies the wrong legal standard or bases its decision on express or implied factual findings that are not supported by substantial evidence. By definition, ‘substantial evidence’ requires evidence and not mere speculation.

Authority:

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

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

People v. Ramon (2009) 175 Cal.App.4th 843, 851

Fifth Holding:

In reviewing a trial court’s finding that a fact has been proved by clear and convincing evidence, the question before us is whether the record as a whole contains substantial evidence from which a reasonable fact finder could have found it highly probable that the dispute] fact was true.

More specifically, in this context, 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 defendant’s mental disorder was not a motivating factor, causal factor, or contributing factor to the defendant’s involvement in the alleged offense. To answer that question, we review the record in the light most favorable to the prevailing party 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.

(Gary note: The balance of the decision discusses the conclusions drawn by the trial court that it relied on to conclude that the mental disorder did not contribute to the offense. The appellate court concluded that the inferences the trial court drew were not substantial evidence to overcome by clear and convincing the presumption that the mental disorder was a contributing factor, and reversed the denial. It remanded for the court to reconsider the defendant’s application for mental health diversion consistent with the appellate court’s opinion.)

Authority:

Lacour v. Superior Court (2025) 110 Cal.App.5th 391, 401-402