Tag Archives: Discretion

Appellate Principles, Discretion, Duty of the court, Plea bargains, Sentencing

Case 000863

Posted on by Gary McCurdy

Error and/or relief

We modify the sentence by vacating the trial court’s stay of punishment for the firearm enhancement and instead strike the punishment.

First Holding:

After taking the defendant’s admission to the firearm enhancement, the trial court did not impose additional punishment for it. Instead, the trial court incorrectly imposed and stayed the low term of three years for the firearm enhancement. Generally, a court has no discretion to stay an enhancement.

The court must either impose or strike the enhancement. Under section 1385(b)(1), the court may also strike the punishment, instead of the enhancement itself. The trial court’s stay of the enhancement resulted in an unauthorized sentence.

Authority:

PEN 1385(b)(1)

People v. Haykel (2002) 96 Cal.App.4th 146, 151

People v. Lopez (2004) 119 Cal.App.4th 355, 364-365

People v. Eberhardt (1986) 186 Cal.App.3d 1112, 1122–1123

People v. Bradley (1998) 64 Cal.App.4th 386, 391

Second Holding:

A resentencing hearing is unnecessary because the correction does not require resolving a factual dispute or exercising discretion. The trial court did not intend to dismiss the firearm enhancement because an admission to it was required by the plea agreement. Nor did the trial court intend to impose additional punishment for the firearm enhancement.

The record clearly supports the court’s intention to strike the punishment for the enhancement had it known a stay was not possible. We accordingly modify the sentence by vacating the trial court’s order that imposed and stayed the three-year term for the firearm enhancement as to count 1. We further modify the sentence to comply with the terms of the plea agreement by striking the punishment for the firearm enhancement pursuant to section 1385(b)(1).

Authority:

PEN 1260

People v. Vieira (2005) 35 Cal.4th 264, 294

People v. Alford (2010) 180 Cal.App.4th 1463, 1473

Discretion, Juveniles, Standard of review

Case 000860

Posted on by Gary McCurdy

Error and/or relief

We reverse the juvenile court’s transfer order and remand for a new hearing and ruling on the district attorney’s transfer motion.

First Holding:

The ultimate question for the juvenile court in a transfer petition is whether a minor is amenable to rehabilitation before the juvenile court’s jurisdiction expires. To order a minor’s transfer to a court of criminal jurisdiction, the juvenile 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)

Cal. Rules of Court, rule 5.770(a), (b)

In re J.S. (2024) 105 Cal.App.5th 205, 212

In re E.P. (2023) 89 Cal.App.5th 409, 416

Second Holding:

In making that determination, the juvenile court must consider five specific criteria: (1) the degree of criminal sophistication exhibited by the minor; (2) whether the minor can be rehabilitated prior to the expiration of the juvenile court’s jurisdiction; (3) the minor’s previous delinquent history; (4) success of previous attempts by the juvenile court to rehabilitate the minor; and (5) the circumstances and gravity of the offense alleged in the petition to have been committed by the minor.

Welfare and Institutions Code section 707(a)(3) also sets forth a nonexhaustive list of relevant factors for the juvenile court to consider with respect to each of the five criteria.

Authority:

In re J.S. (2024) 105 Cal.App.5th 205, 212

Third Holding:

The allegation that a minor committed a serious offense, including murder, does not automatically require a finding of unfitness. Rather, in evaluating this criterion, a juvenile court may rely on evidence that, while not justifying or excusing the crime, tends to lessen its magnitude.

Authority:

Kevin P. v. Superior Court (2020) 57 Cal.App.5th 173, 189

Fourth Holding:

A juvenile court can retain jurisdiction over a minor as described in section 602 for the offense of murder until he or she attains 25 years of age, or upon the expiration of a two-year period of control, whichever occurs later.

In determining whether the minor can be rehabilitated prior to the expiration of the juvenile court’s jurisdiction, ‘the juvenile court shall give weight to any relevant factor, including, but not limited to, the minor’s potential to grow and mature.

Expert witnesses may testify on the issue of the availability of treatment programs in the juvenile court system and the amenability of the minor to those programs.

Authority:

In re J.S. (2024) 105 Cal.App.5th 205, 213

Fifth Holding:

A minor’s amenability to rehabilitation is the central and dispositive question in proceedings under section 707, and the juvenile court’s analysis of the section 707 criteria must be focused through the lens of amenability to rehabilitation.

Authority:

In re O.F. (2026) 119 Cal.App.5th 133, 161–162

In re S.S. (2023) 89 Cal.App.5th 1277, 1288, superseded by statute on other grounds as stated in In re J.M. (2024) 103 Cal.App.5th 745, 751–753

Sixth Holding:

We review the juvenile court’s ruling on a transfer motion for abuse of discretion. The lower court’s findings of fact are reviewed for substantial evidence, its conclusions of law de novo, and its application of the law to the facts is reversible only if arbitrary and capricious.

The court’s ultimate finding that the minor is not amenable to rehabilitation while under its jurisdiction is also reviewed for substantial evidence. In conducting substantial evidence review, we draw all reasonable inferences in support of the court’s findings.

Moreover, a trial court abuses its discretion when its factual findings are not supported by the evidence, or its decision is based on an incorrect legal standard.

Authority:

In re O.F. (2026) 119 Cal.App.5th 133, 160

People v. Thai (2023) 90 Cal.App.5th 427, 433

Seventh Holding:

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.

The clear and convincing evidence standard requires a finding of high probability. The evidence must be so clear as to leave no substantial doubt; sufficiently strong to command the unhesitating assent of every reasonable mind.

Authority:

In re O.F. (2026) 119 Cal.App.5th 133, 160–161

Eighth Holding:

The court’s reliance on uncertainty born out of the district attorney’s limited proof about why the minor would not accept or respond to the available treatment that the probation department believed would prepare the minor for re-entry into the community resulted in an improper shift of the burden from the district attorney to show the minor’s unamenability to the minor to show his amenability to rehabilitation.

This shift amounts to an abuse of discretion based on the application of an incorrect legal standard. Given that the juvenile court improperly applied the burden of proof in deciding that the minor is not amenable to rehabilitation while under the court’s jurisdiction, we agree with the minor that the court’s order granting the transfer motion must be reversed and the matter remanded for a new transfer hearing.

Authority:

J.N. v. Superior Court (2018) 23 Cal.App.5th 706, 722 [holding there was an abuse of discretion where there was no evidence that demonstrated existing programs were unlikely to result in the minor’s rehabilitation, why they were unlikely to work in this case, or that they would take more than three years to accomplish the task of rehabilitating minor]

People v. Centeno (2014) 60 Cal.4th 659, 673 [The prosecution cannot suggest that deficiencies in the defense case can make up for shortcomings in its own]

Appellate Principles, Discretion, Sentencing, Statutory interpretation

Case 000855

Posted on by Gary McCurdy

Error and/or relief

The trial court erred under section 654 by imposing concurrent sentences on three separate convictions arising from the same single act.

First Holding:

Section 654(a) provides that an act or omission that is punishable in different ways by different provisions of law may be punished under either of such provisions, but in no case shall the act or omission be punished under more than one provision. When a court determines that a conviction falls within the meaning of section 654, it is necessary to impose sentence but to stay the execution of the duplicative sentence. The imposition of concurrent sentences is precluded by section 654 because under such a sentence the defendant is deemed to be subjected to the term of both sentences although they are served simultaneously.

Authority:

PEN 654

People v. Duff (2010) 50 Cal.4th 787, 796

People v. Mani (2022) 74 Cal.App.5th 343, 380 [The trial court is required to impose judgment on each count, which involves selecting a term, and then staying execution of the duplicative sentence, the stay to become permanent upon defendant’s service of the portion of the sentence not stayed.]

Second Holding:

Section 654 provides the trial court with discretion to impose and execute the sentence of either term, which could result in the trial court imposing and executing the shorter sentence rather than the longer sentence.

Authority:

PEN 654

People v. Mani (2022) 74 Cal.App.5th 343, 379

Third Holding:

One provision of the One Strike law, section 667.61(h)), states: “Notwithstanding any other law, probation shall not be granted to, nor shall the execution or imposition of sentence be suspended for, a person who is subject to punishment under this section.”

There is a split of authority over whether this provision precludes a sentencing court from staying execution of a One Strike sentence under section 654. We conclude that People v. Govan has the better reasons view of the interplay between section 667.61(h) and section 654.

Authority:

People v. Caparaz (2022) 80 Cal.App.5th 669

People v. Govan (2023) 91 Cal.App.5th 1015, 1032-1035 [Based on the Govan court’s review of legislative history, the “no suspension clause” must be read in the context of a bar against the grant of probation, and does not supersede section 654’s prohibition against multiple punishment, disagreeing with Caparaz.]

Fourth Holding:

When we interpret a statute, our fundamental task is to determine the Legislature’s intent so as to effectuate the law’s purpose.

We first examine the statutory language, giving it a plain and commonsense meaning. If the language is clear, courts must generally follow its plain meaning unless a literal interpretation would result in absurd consequences the Legislature did not intend.

If the statutory language permits more than one reasonable interpretation, courts may consider other aids, such as the statute’s purpose, legislative history, and public policy.

Furthermore, we consider portions of a statute in the context of the entire statute and the statutory scheme of which it is a part, giving significance to every word, phrase, sentence, and part of an act in pursuance of the legislative purpose.

Authority:

People v. Reynoza (2024) 15 Cal.5th 982, 989–990

Fifth Holding:

Courts have recognized that the suspension clause’s language has a technical meaning unique to a grant of probation. We therefore conclude the Legislature intended for section 667.61(h)’s suspension clause to have its technical, probation related meaning.

Indeed, as used in section 1203(a), “probation” means the suspension of the imposition or execution of a sentence and the order of conditional and revocable release in the community under the supervision of a probation officer.

When the Legislature uses a term of art, a court construing that use must assume that the Legislature was aware of the ramifications of its choice of language. We therefore conclude the Legislature intended for section 667.61(h)’s suspension clause to have its technical, probation related meaning.

Authority:

PEN 7(c) [Words and phrases shall be construed according to the context and the approved usage of the language, but technical words and phrases, and any others as may have acquired a peculiar and appropriate meaning in law, shall be construed according to that peculiar and appropriate meaning.]

People v. Govan (2023) 91 Cal.App.5th 1015, 1033

People v. Superior Court (Himmelsbach) (1986) 186 Cal.App.3d 524, 536, fn. 8 [the words ‘suspension of execution’ are employed in conjunction with a grant of probation and have developed into terms of art], (disapproved on another ground by People v. Norrell (1996) 13 Cal.4th 1, 7, fn. 3)

People v. Borynack (2015) 238 Cal.App.4th 958, 965

Ruiz v. Podolsky (2010) 50 Cal.4th 838, 850, fn. 3

Sixth Holding:

This interpretation is consistent with how some courts have interpreted similarly worded statutes. Many related criminal statutes with related purposes contain language identical to section 667.61(h). Courts have not historically interpreted similar statutory provisions as precluding a stay under section 654.

Authority:

People v. Gonzalez (2017) 2 Cal.5th 1138, 1141 [We consider the language of the entire scheme and related statutes, harmonizing the terms when possible.]

People v. Barela (1983) 145 Cal.App.3d 152, 160 [holding section 1203.06–with similar language–does not preclude a stay under section 654]

People v. Superior Court (Himmelsbach) (1986) 186 Cal.App.3d 524, 536, fn. 8 [rejecting as unpersuasive the contention that a prohibition on suspension of execution of sentence under repealed section 12311 precluded a stay under section 654]

Seventh Holding:

We presume that when the Legislature enacted section 667.61 in 1994 and amended it in 2006, the Legislature was aware of how courts had interpreted identical statutory language and that the Legislature intended for that interpretation to also apply to section 667.61.

Where legislation has been judicially construed and a subsequent statute on the same or an analogous subject uses identical or substantially similar language, we may presume that the Legislature intended the same construction, unless a contrary intent clearly appears.

Authority:

People v. Seumanu (2015) 61 Cal.4th 1293, 1367

Eighth Holding:

Finally, we are satisfied that interpreting section 667.61 as allowing a stay under section 654 is consistent with the One Strike law’s legislative purpose in imposing lengthy prison sentences for certain sex offenses.

Although interpreting section 667.61 this way allows for shorter sentences in some circumstances, it does not require it. Rather, it leaves the decision to the trial court’s sound sentencing discretion.

Authority:

PEN 654

People v. Reynoza (2024) 15 Cal.5th 982, 989

Ninth Holding:

When a sentencing court is unaware of the scope of its discretionary powers, 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.

In light of the presumption on a silent record that the trial court is aware of the applicable law, including statutory discretion at sentencing, we cannot presume error where the record does not establish on its face that the trial court misunderstood the scope of that discretion.

The record indicates, however, that the trial court did not understand the scope of its discretion. The court expressly stated it took no joy in imposing the harsh sentence, and that it had imposed counts concurrently wherever it could, but that it had no discretion to impose other than the harsh sentence–that the sentence it imposed were the only options.

Therefore, we must remand for resentencing given the extent of the court’s full discretion under section 654.

Authority:

People v. Salazar (2023) 15 Cal.5th 416, 424

People v. Gutierrez (2009) 174 Cal.App.4th 515, 527

(Gary note, of marginal historical interest: Prior to 1998, Penal Code section 654 had exactly the same language as it currently has, and a court was free to impose sentence on any one of the counts to which section 654 applied. See People v. Norrell (1996) 13 Cal.4th 1. In response to that Supreme Court decision, the Legislature amended section 654 to require that the court impose sentence on the count containing the longest potential term. Through AB 518, effective 1/1/2022, the Legislature restored section 654 to its former language, thus restoring to the court the discretion to choose on which count punishment should be imposed and executed.)

Appellate Principles, Discretion, Standard of review

Case 000851

Posted on by Gary McCurdy

Error and/or relief

We conclude the trial court erred when it denied mental health diversion under Penal Code section 1001.36, conditionally reverse the judgment, and remand the matter for the court to reconsider the defendant’s motion.

First Holding:

Diversion under section 1001.36 postpones criminal proceedings to allow the defendant to undergo mental health treatment, subject to specified conditions. It is intended to mitigate the entry and reentry of people with mental disorders into the criminal justice system by addressing their unique needs while simultaneously protecting public safety. A recognition that incarceration accomplishes little to deter lawlessness, but successful mental health treatment helps individuals and makes communities safer, led the Legislature to create and then expand this pretrial diversion.

Authority:

PEN 1001.35(a)(c)

People v. Braden (2023) 14 Cal.5th 791, 801

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 890–891

Second Holding:

To qualify for mental health diversion, defendants must meet the two eligibility criteria under section 1001.36(b), and the four suitability criteria set forth in subdivision (c) of that section.

Authority:

Gomez v. Superior Court (2025) 113 Cal.App.5th 671, 685

Third Holding:

Eligible defendants are suitable for diversion where (1) in the opinion of a qualified mental health expert 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 requirements; 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, which concerns the risk the defendant will commit violent felonies colloquially referred to as super strikes.

Authority:

People v. Tourville (2026) 120 Cal.App.5th 439, 452

Fourth Holding:

Even when the defendant makes a prima facie showing of meeting the statutory eligibility and suitability criteria, the court may nonetheless exercise its discretion to deny diversion.

But this residual discretion must be exercised consistent with the principles and purpose of the governing law, including the strong legislative preference for treatment of mental health disorders given the resulting benefits 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:

Gomez v. Superior Court (2025) 113 Cal.App.5th 671, 679

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

Fifth Holding:

We review a trial court’s ruling on a request for mental health diversion for abuse of discretion. A court abuses its discretion when it makes an arbitrary 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:

Gomez v. Superior Court (2025) 113 Cal.App.5th 671, 687

People v. Tourville (2026) 120 Cal.App.5th 439, 453

Sixth Holding:

A ruling or decision, itself correct in law, will not be disturbed on appeal merely because given for a wrong reason. If right upon any theory of the law applicable to the case, it must be sustained regardless of the considerations which may have moved the trial court to its conclusion.

Authority:

People v. Turner (2020) 10 Cal.5th 786, 807

Seventh Holding:

The court erred in finding the defendant not suitable for diversion because of his repeated failures to comply with other forms of supervision. It was an abuse of discretion to deny diversion based on such reasoning, whether on the ground that the defendant’s symptoms would not respond to treatment  or on the ground that the recommended treatment plan would not meet his or her needs.

Authority:

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

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 893-894

Eighth Holding:

We will conditionally reverse the judgment and remand the matter for the trial court to reconsider the defendant’s motion for mental health diversion, bearing in mind the statutory principles and purpose of the statute, including the goal of promoting increased diversion of individuals with mental disorders to mitigate their entry and reentry into the criminal justice system.

We express no opinion as to how the court should rule on remand. Still, we observe that denying diversion based on a defendant’s treatment history may be a proper exercise of discretion if the proposed treatment plan is no different from one that failed in the past.

On the other hand, a defendant’s failure to benefit from past treatment may not support an order denying diversion where the proposed treatment plan adequately addresses the defendant’s mental health needs and is significantly different from the prior treatment.

Authority:

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

People v. Russo (2026) 121 Cal.App.5th 134, 139

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 894-895

Discretion, Duty of the court, Fines and fees, Sentencing

Case 000849

Posted on by Gary McCurdy

Error and/or relief

At the resentencing hearing held under section 1172.75, the resentencing court erred by (1) imposing consecutive sentences on the defendant’s attempted murder and felon in possession of a firearm counts because the court was unaware of its discretion to impose concurrent terms, (2) not recalculating custody credits, and (3) reimposing a restitution fine under section 1202.4.

First Holding:

When the Three Strikes law applies, sentences for current qualifying offenses must be ordered to run consecutively to each other if the current offenses occur on separate occasions and do not arise from the same set of operative facts.

Conversely, where a sentencing court determines that two or more current felony convictions were either committed on the same occasion or arise from the same set of operative facts, consecutive sentencing is not required under the three strikes law, but is permissible in the trial court’s sound discretion.

Authority:

PEN 667(c)(6)

People v. Henderson (2022) 14 Cal.5th 34, 45

People v. Lawrence (2000) 24 Cal.4th 219, 233

Second Holding:

When the record shows the trial court proceeded with sentencing on the erroneous assumption it lacked discretion, remand is necessary so that the court may have the opportunity to exercise its sentencing discretion at a new sentencing hearing. Defendants are entitled to sentencing decisions made in the exercise of the informed discretion of the sentencing court, and a court that is unaware of its discretionary authority cannot exercise its informed discretion.

Authority:

People v. Brown (2007) 147 Cal.App.4th 1213, 1228

Third Holding:

The attempted murder and felon in possession of a firearm counts were based on the defendant’s possession and use of the same firearm. There is no suggestion that the defendant possessed more than one gun when he committed the offenses.

Because the attempted murder and felon in possession of a firearm counts arose from the same set of operative facts, the resentencing court had discretion to impose concurrent sentences. Remand for resentencing is appropriate as the court was unaware of its discretion, and there is no indication that had it been aware of its discretion, it would nevertheless have imposed consecutive terms.

Authority:

People v. Garcia (2008) 167 Cal.App.4th 1550, 1567

People v. Deloza (1998) 18 Cal.4th 585, 600

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

Fourth Holding:

When a felony sentence is modified during the term of imprisonment, the trial court must recalculate and credit the actual time defendant had served on his sentence prior to the modification. Where a defendant has served any portion of his sentence under a commitment based upon a judgment which judgment is subsequently declared invalid or which is modified during the term of imprisonment, such time shall be credited upon any subsequent sentence he may receive upon a new commitment for the same criminal act or acts. On remand, the resentencing court must recalculate the defendant’s custody credits for actual time served.

Authority:

People v. Buckhalter (2001) 26 Cal.4th 20, 23

Fifth Holding:

The restitution fine imposed under section 1202.4 must be vacated under section 1465.9. Effective January 1, 2025, section 1465.9 was amended to add subdivision (d), which provides that, upon the expiration of 10 years after the date of imposition of a restitution fine pursuant to Section 1202.4, the balance, including any collection fees, shall be unenforceable and uncollectible and any portion of a judgment imposing those fines shall be vacated.

Because the defendant’s restitution fine was imposed more than 10 years ago, any balance is unenforceable and uncollectable by operation of law. The fine must be vacated

Authority:

PEN 1465.9