Tag Archives: Discretion

Discretion, Duty of the court, Sentencing

Case 001139

Posted on by Gary McCurdy

Error and/or relief

The trial court abused its discretion by denying mental health diversion because the court’s finding that his proposed treatment plan would not address his mental health needs was not supported by the record. The trial court abused its discretion by denying developmentally disabled diversion because the defendant did not produce suitable treatment program.

First Holding:

The Legislature enacted sections 1001.35 and 1001.36 to create a pretrial diversion program for criminal defendants with diagnosed mental health disorders. The statute expressly promotes increased diversion of individuals with mental disorders to mitigate the individuals’ entry and reentry into the criminal justice system while protecting public safety. Section 1001.36 requires the trial court to find the defendant both eligible for diversion and suitable for the program. Section 1001.36(b) and (c) set forth the criteria for each.

Authority:

PEN 1001.35

PEN 1001.36

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 890-891, 887 (section 1001.36 was designed to encourage trial courts to broadly authorize pretrial mental health diversion, providing treatment for qualifying mental disorders that result in criminal behavior)

Vaughn v. Superior Court (2024) 105 Cal.App.5th 124, 133

Second Holding:

If the defendant is both eligible and suitable, the trial court must also be satisfied that the recommended inpatient or outpatient program of mental health treatment will meet the specialized mental health treatment needs of the defendant. This is not an additional eligibility or suitability requirement the defendant must meet.

Rather, section 1001.36(f)(1) read as a whole appears to contemplate an ongoing assessment to assure that defendants will receive appropriate treatment for their particular conditions as part of the diversion program. Under this provision, a court might reject diversion if it concluded that the proposed treatment services did not target or could not effectively address the defendant’s particular diagnosis. For instance, the court might be legitimately concerned if the evaluation of the defendant suggested the need for psychiatric medication and the recommended program did not provide psychiatric services.

Authority:

PEN 1001.36(f)(1)(A)(i)

Vaughn v. Superior Court (2024) 105 Cal.App.5th 124, 134

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 892, 895, fn. 9

Third Holding:

Even where a defendant makes a prima facie showing that the defendant meets all the eligibility and suitability requirements, the trial court may still exercise its discretion to deny diversion. But this residual discretion is not unfettered and must be exercised consistent with the principles and purpose of the governing law.

That purpose includes a strong legislative preference for treatment of mental health disorders because of the benefits of such treatment to both the offending individual and the community. Where the court chooses to exercise this residual discretion to deny diversion, its statement of reasons should reflect consideration of the underlying purposes of the statute and explain why diversion would not meet those goals.

Authority:

PEN 1001.36(a)

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

Vaughn v. Superior Court (2024) 105 Cal.App.5th 124, 135

Fourth Holding:

A trial court’s ruling on a request for mental health diversion is reviewed 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. Further, action that transgresses the confines of the applicable principles of law is outside the scope of discretion and constitutes an abuse of discretion.

The trial court found the defendant made a prima facie showing that he was eligible and suitable for mental health diversion but denied diversion because it found the defendant’s proposed treatment program would not meet his mental health needs. We conclude substantial evidence does not support the court’s finding. (Gary note: The opinion then discusses facts specific to this defendant and the evidence produced, and concluded the evidence was insufficient to support the trial court’s conclusion that there was no suitable treatment plan.)

Under the circumstances, we will conditionally reverse the judgment and remand the matter for the court to reconsider the motion, bearing in mind the statutory principles and purpose of the mental health diversion statute.

Authority:

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

People v. Graham (2024) 102 Cal.App.5th 787, 795

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

People v. Qualkinbush (2022) 79 Cal.App.5th 879, 892, 895

Fifth Holding:

In this instance, the defendant also was denied diversion under section 1001.20 et seq. for developmentally disabled persons. When the court suspects that a defendant may have a developmental disability, the trial court shall order the prosecutor, the probation department, and the regional center to prepare reports on specified aspects of the defendant’s case. The trial court has a sua sponte duty to consult with the relevant agencies to determine whether a defendant may be diverted.

As with a denial of a request for mental health diversion, we review a trial court’s denial of developmental disability diversion for abuse of discretion.

Authority:

Authority:
PEN 1001.20

People v. K.D. (2025) 110 Cal.App.5th 1, 16, 18-19 [abuse of discretion arises if the trial court based its decision on impermissible factors or on an incorrect legal standard]

Sixth Holding:

Unlike other diversion statutes, section 1001.23(b) does not include a stand-alone requirement that the defendant prove that his or her developmental disability was a significant factor in the commission of the charged crime.

Authority:

People v. K.D. (2025) 110 Cal.App.5th 1, 24

Seventh Holding:

There is no dispute that the defendant has a developmental disability and is eligible for regional center services. The trial court denied developmental disability diversion because it was not satisfied that the defendant presented a suitable program to meet his needs.

Under section 1001.20 et seq., however, the defendant was not required to provide a proposed plan or one that would meet his needs.

Remand is required so that the court can exercise informed discretion with the information required by statute, keeping in mind the ultimate question of whether, in light of the statutorily-prescribed considerations, defendant is a person who would benefit by diversion.

Authority:

People v. K.D. (2025) 110 Cal.App.5th 1, 31-32, 28 [trial court erroneously denied motion for developmental disability diversion under the misguided view that defendant was obligated to provide a treatment plan]

Discretion, Sentencing, Standard of review

Case 001129

Posted on by Gary McCurdy

Error and/or relief

The trial court abused its discretion in denying mental health diversion. There was insufficient evidence to support the court’s determination that she was at risk of committing a super strike offense if treated in the community.

First Holding:

To qualify for pretrial diversion, criminal defendants must show they are both eligible and suitable for the program. A defendant is eligible for diversion if he or she has been diagnosed with a mental disorder that was a significant factor in the commission of the charged offense.

Generally, 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, as defined in section 1170.18, if treated in the community.

Authority:

PEN 1001.36(a), (b)

People v. Bunas (2022) 79 Cal.App. 5th 840, 859-860

Second Holding:

Under section 1170.18(c), an unreasonable risk of danger to public safety means an unreasonable risk that the defendant will commit a new violent felony within the meaning of section 667(e)(2)(C)(iv). Those violent felonies, commonly referred to as “super strikes,” include murder and attempted murder.

(Gary note: effective 1/1/2027, the language of 1001.36 changes–it drops the reference to section 1170.18, and instead states, “The defendant will not pose a substantial and undue risk to the physical safety of another person, if treated in the community.” That’s a much lower bar for the court to justify a finding that the person poses disqualifying risk.)

Authority:

PEN 1170.18

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

People v. Graham (2024) 102 Cal.App. 5th 787, 799

Third Holding:

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

Authority:

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

People v. Cluff (2001) 87 Cal.App. 4th 991, 998 [A trial court abuses its discretion when the factual findings critical to its decision find no support in the evidence]

Fourth Holding:

We conclude the evidence is insufficient to support the trial court’s finding that defendant poses an unreasonable risk of committing a super strike if treated in the community. The court relied on the underlying charges and defendant’s limited criminal past to find defendant posed an unreasonable public safety risk. Defendant has no history of arrests or convictions for a super strike offense, and the underlying charges were not super strikes.

Authority:

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

Gomez v. Superior Court (2025) 113 Cal.App. 5th 671, 690 [violent conduct alone is insufficient alone to support a finding defendant was likely to commit a super strike offense]

Fifth Holding:

Section 1001.36 provides the trial court with discretion to deny diversion even if it finds a defendant meets the statutory eligibility and suitability criteria. But residual discretion must be exercised consistent with the principles and purpose of the governing law.

Authority:

People v. Cabalar (2025) 117 Cal.App. 5th 41, 53

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

Wade v. Superior Court (2019) 33 Cal.App. 5th 694, 710

Sixth Holding:

Here, although the trial court mentioned its residual discretion, its ultimate finding that defendant’s treatment plan was insufficient to address defendant’s mental health disorders did not reflect consideration of the underlying purposes of the statute nor did it explain why diversion would not meet those goals.

As such, we cannot conclude the court properly exercised its residual discretion.

Authority:

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

Vaughn v. Superior Court (2024) 105 Cal.App. 5th 124, 139

Discretion, Duty of the court, Standard of review, Sufficiency of and substantial evidence

Case 001123

Posted on by Gary McCurdy

Error and/or relief

The court erred in denying the defendant’s request for mental health diversion after considering only one of the two available medical reports before determining that the defendant presented an unreasonable risk of danger to public safety within the meaning of section 1170.18.

(Gary note: as I explain below in a note to the Third Holding, that standard is slated to change 1/1/27.)

First Holding:

Section 1001.36 gives trial courts discretion to grant pretrial diversion for defendants with qualifying mental health disorders. The court may postpone prosecution to allow the defendant to receive mental health treatment. The Legislature intended the mental health diversion program to apply as broadly as possible.

Authority:

PEN 1001.36

People v. Frahs (2020) 9 Cal.5th 618, 626, 632

People v. Tourville (2026) 120 Cal.App.5th 439, 451

Vaughn v. Superior Court (2024) 105 Cal.App.5th 124, 133

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

Second Holding:

Defendants requesting mental health diversion have the burden to make a prima facie showing that they will meet the minimum requirements of eligibility for diversion and that they and the offense are suitable for diversion.

A defendant is eligible under section 1001.36(b) if:

(1) a qualified mental health expert has diagnosed the defendant within the last five years with a mental disorder identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders (with limited exceptions); and

(2) the defendant’s mental disorder was a significant factor in the charged offense.

Authority:

PEN 1001.36(b)

Vaughn v. Superior Court (2024) 105 Cal.App.5th 124, 133

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

Third Holding:

A defendant is suitable for diversion under section 1001.36(c) if the defendant satisfies four requirements:

(1) a qualified mental health expert concludes the defendant’s mental disorder would respond to treatment;

(2) the defendant consents to diversion and agrees to waive his or her speedy trial rights;

(3) the defendant agrees to comply with treatment; and

(4) if treated in the community, the defendant will not pose an “unreasonable risk of danger to public safety,” as defined in section 1170.18.

(Gary note: Effective 1/1/2027, the language in 1001.36(c)(4) regarding an unreasonable risk of danger to public safety (as defined in section 1170.18) changed to something much less favorable for seekers of diversion. AB 46 (enacted as Chapter 18) and AB 2273 (enacted as Chapter 298) amended section 1001.36 by changing and renumbering the “public safety” subdivision language to 1001.36(c)(D). Instead of incorporating the “superstrike” language of Penal Code section 1170.18, the language effective 1/1/27 will read “The defendant will not pose a substantial and undue risk to the physical safety of another person, if treated in the community. …”)

Authority:

PEN 1001.36(c)

People v. Tourville (2026) 120 Cal.App.5th 439, 458

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 891-892

Fourth Holding:

Even if the defendant makes a prima facie showing he or she meets the statutory requirements, the trial court has residual discretion to deny diversion. The court must exercise its residual discretion consistent with the principles and purpose of the mental health diversion statutes.

Authority:

People v. Cabalar (2025) 117 Cal.App.5th 41, 53

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

Vaughn v. Superior Court (2024) 105 Cal.App.5th 124, 135

Fifth Holding:

We review the trial court’s order granting or denying a request for mental health diversion for abuse of discretion. The 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.

Authority:

Vaughn v. Superior Court (2024) 105 Cal.App.5th 135

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

(Gary note: The appellate court described confusion in the record as to whether the trial court had the second mental health report available or read it. The trial court denied the request for diversion on finding that the defendant posed an unreasonable danger to public safety as defined in section 1170.18. The appellate court remanded for the trial court to review that second report before making a determination on whether the defendant poses a reasonable risk of committing a so-called superstrike.

(As I noted above, however, that bar is lowered as of 1/1/27. Of course, the trial court should still consider the second report. The question I have and do not know the answer to is whether the defendant is entitled to the heightened standard as it existed at the time he made his request for diversion and as it stands as of the writing of this summary, or whether any delay in the new proceedings past 2026 will subject him to evaluation as a risk under the new lower bar. Was that a question? Hmmm. You get my drift, though, right?)

Discretion

Case 001122

Posted on by Gary McCurdy

Error and/or relief

The court abused its discretion in denying the defendant’s motion to continue trial (set to begin within a week) for a referral for consideration of mental health diversion.

The judgment is reversed. The matter is remanded with directions that the defendant be given a reasonable opportunity to file an application for mental health diversion and, should she choose to file such an application, to have it considered on its merits.

First Holding:

We review a trial court’s denial of a request for a continuance for abuse of discretion. In Seigler, the defendant’s counsel filed a petition for mental health diversion and a request for a continuance on the day trial was to start. The court denied the requested continuance in part because counsel exhibited no diligence in filing the motion for a continuance and application for diversion on the day of trial.

The court in Seigler noted the record suggested mental health was an issue, defense counsel’s difficulty communicating with his client appeared to explain the failure to obtain a mental health evaluation, and the potentially enormous benefits of a continuance for the defendant outweighed any burden that granting it would cause.

Seigler’s reasoning applies with at least equal force in this case.

Authority:

People v. Seigler (2025) 116 Cal.App.5th 596, 600-601, 609-610

Second Holding:

A petition for mental health diversion is timely so long as it is made before attachment of jeopardy at trial or the entry of a guilty or no contest plea, whichever occurs first.

Authority:

People v. Braden (2023) 14 Cal.5th 791, 819

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

Case 001115

Posted on by Gary McCurdy

Error and/or relief

On resentencing under section 1172.75, the court erred in failing to consider whether the criminal gang activity enhancements were still valid with the passage of AB 333 after the initial conviction and sentencing.

First Holding:

Any sentence enhancement that was imposed prior to January 1, 2020, pursuant to section 667.5(b) (with one exception) is legally invalid. The sentencing court, upon being notified that a person in custody is currently serving a prison term that includes a now-invalid section 667.5(b) enhancement, becomes vested with jurisdiction to review the judgment, verify the existence of an invalid enhancement, recall the sentence, and resentence the defendant.

Section 1172.75(d)(2) directs the court to conduct a full resentencing, regardless of whether the enhancement was executed or stayed, and apply any other changes in the law.

Authority:

1172.5

People v. Rhodius (2025) 17 Cal.5th 1050, 1054, 1061–1062

Second Holding:

Once a court has determined that a defendant is entitled to resentencing, the result is vacatur of the original sentence, whereupon the trial court may impose any appropriate sentence. A full resentencing requires the court to consider all sentencing options available under the law at the time of the resentencing hearing.

This includes any ameliorative amendments to criminal statutes (unless otherwise expressed by the Legislature). The amendments to section 186.22 brought about by ABB 333 are ameliorative and apply retroactively.

Authority:

People v. Padilla (2022) 13 Cal.5th 152, 163

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

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

In re Estrada (1965) 63 Cal.2d 740, 744–745

People v. Tran (2022) 13 Cal.5th 1169, 1206‒1207

Third Holding:

A trial court’s resentencing decision under section 1172.75 is reviewed for abuse of discretion. Defendants are entitled to sentencing decisions made in the exercise of the informed discretion of the sentencing court.

A court that is unaware of the scope of its discretionary powers can no more exercise that informed discretion than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant’s record.

In such circumstances, we have held that the appropriate remedy is to remand for resentencing 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.

Authority:

People v. Garcia (2024) 101 Cal.App.5th 848, 856

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

Fourth Holding:

When the defendant was resentenced under section 1172.75, the court had the jurisdiction and duty to consider the ameliorative effects of AB 333 on the gang enhancements found true by the jury in the pre-AB 333 era. A review of the record from the resentnecing hearing indicates the court did not consider defendant’s section 186.22 arguments. The court’s failure to consider this issue when resentencing defendant requires remand.

Authority:

People v. Lopez (2025) 17 Cal.5th 388, 393 [Because the judgment in this case was not final for Estrada purposes, the appellant was entitled to the retroactive application of AB 333]

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