Tag Archives: Discretion

Discretion, Standard of review

Case 000661

Posted on by Gary McCurdy

Error and/or relief

The trial court applied an improper legal standard when determining whether the defendant was eligible for mental health diversion, made findings regarding his eligibility that were not supported by the evidence, and failed to provide a basis for the exercise of its residual discretion to deny his motion. We accordingly conditionally reverse the judgment and remand for further proceedings on the defendant’s motion for mental health diversion.

First Holding:

Section 1001.36 states that a trial court may, in its discretion, and after considering the positions of the defense and prosecution, grant pretrial diversion to a defendant pursuant to this section if the defendant satisfies the eligibility requirements for pretrial diversion set forth in subdivision (b) and the court determines that the defendant is suitable for that diversion under the factors set forth in subdivision (c).

Authority:

PEN 1001.36(a)

Second Holding:

The statute identifies two eligibility requirements: (1) in the last five years the defendant has been diagnosed with or treated for “a mental disorder as identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders, including, but not limited to, bipolar disorder, schizophrenia, schizoaffective disorder, or post-traumatic stress disorder, but excluding antisocial personality disorder and pedophilia” (§ 1001.36, subd. (b)(1)); and (2) the defendant’s mental disorder was a significant factor in the commission of the charged offense.

Authority:

PEN 1001.36(b)(2)

Third Holding:

The statute identifies four suitability criteria: (1) a qualified mental health expert has opined that the defendant’s symptoms of the mental disorder causing, contributing to, or motivating the criminal behavior would respond to mental health treatment; (2) the defendant (if mentally competent) consents to diversion and waives the right to a speedy trial; (3) the defendant (if mentally competent) agrees to comply with treatment as a condition of diversion; and (4) 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(c

Fourth 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 1001.36f)(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.

Authority:

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

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

Fifth Holding:

Even where defendants make a prima facie showing that they meet all the express statutory requirements, the court may still exercise its discretion to deny diversion. But this residual discretion 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:

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

Sixth Holding:

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

Authority:

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

Seventh Holding:

If the defendant has been diagnosed with a mental disorder, the 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.

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 issue before us is whether the record as a whole contains substantial evidence from which a reasonable factfinder could have found it highly probable that the defendant’s mental disorder was not a motivating factor, causal factor, or contributing factor to his involvement in the alleged offense.

Authority:

PEN 1001.36(b)

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

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

Eighth Holding:

Reviewing courts have consistently made clear that the legislation’s aim is for diversion to apply as broadly as possible so as to increase the provision of mental health treatment for the betterment of individuals and society as a whole. “A trial court’s denial of mental health diversion using its residual discretion should be limited to those situations where the purposes of the statute would not be achieved.”

Authority:

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

Vaughn v. Superior Court (2024) 105 Cal.App.5th 124, 138

Discretion, Sentencing, Sufficiency of and substantial evidence

Case 000657

Posted on by Gary McCurdy

Error and/or relief

The court erred in denying the medically eligible defendant’s petition for compassionate release under section 1172.2, because there was insufficient evidence to support the court’s finding that there was an unreasonable risk that the defendant would commit a super strike.

First Holding:

The Penal Code imposes a presumption favoring compassionate release for medically-eligible individuals and, as to the risk of re-offense, requires an assessment not of whether a new crime would be theoretically possible, but whether there would be an unreasonable risk of a super strike as defined by the law. On this record, we conclude there is insufficient evidence of an unreasonable risk that defendant would commit a super strike if granted compassionate release. Accordingly, we will reverse the trial court’s order denying the petition for compassionate release and direct the trial court to recall defendant’s sentence in accordance with section 1172.2.

Authority:

PEN 1172.2

Second Holding:

A superior court abuses its discretion when the factual findings essential to its decision lack evidentiary support. The superior court’s factual findings are reviewed for substantial evidence.

Authority:

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

In re White (2020) 9 Cal.5th 455, 470

Third Holding:

Section 1172.2 authorizes a trial court to recall the sentence of an incarcerated person who is permanently medically incapacitated with a medical condition or functional impairment that renders them permanently unable to complete basic activities of daily living. If the trial court finds that an incarcerated person satisfies this criterion, the statute establishes a presumption favoring recall and resentencing that may only be overcome if a court finds the defendant is an unreasonable risk of danger to public safety, as defined in subdivision section 1170.18(c), based on the incarcerated person’s current physical and mental condition.

Authority:

PEN 1172.2(b)(2)

Fourth Holding:

Under section 1170.18(c), an unreasonable risk of danger to public safety is an unreasonable risk that the petitioner will commit a “super strike,” which includes any homicide or attempted homicide offense, any serious or violent felony offense punishable by life imprisonment or death, and certain sexually violent offenses.

Authority:

PEN 1170.18(c)

Fifth Holding:

After reviewing the evidence of the physical and mental condition of the defendant, the court concluded that there was insufficient evidence to support the finding that he was capable of committing a super strike. The appellate court relied on Lewis, a case in which it was held to be an abuse of discretion to deny compassionate release on evidence that showed that the defendant perhaps had the capacity to commit a super strike, but that did not necessarily establish an unreasonable risk that he would commit such an offense.

Authority:

People v. Lewis (2024) 101 Cal.App.5th 401, 407-409

Appellate Principles, Discretion, Due process, Elements of crime, Pleading, Sentencing, Standard of review

Case 000654

Posted on by Gary McCurdy

Error and/or relief

The court imposed the wrong sentence for the consecutive term.

First Holding:

In one count, the defendant was convicted of second degree robbery (sec. 211). At sentencing, the trial court imposed an aggravated term of five years, which was ordered to be served consecutively at a subordinate term of one year four months. Because the robbery was a second degree felony, the middle term is three years in prison. As such, the consecutive subordinate term must be one-third the middle term, or one year. Thus, the sentence on that count must be reduced from 16 months to one year. We may correct this unauthorized sentence on appeal without remanding for a full resentencing.

Authority:

PEN 1170.1(a)

PEN 1260

People v. Lawley (2002) 27 Cal.4th 102, 171–172

Second Holding:

The defendant argues that he should have been charged with only one count of attempting to dissuade a witness rather than the 10 charged and found true. The ten calls all occurred on the same day over a span of six hours. The issue is whether appellant may be lawfully subject to multiple convictions. We review this claim de novo.

Authority:

PEN 954

People v. Duffy (2020) 51 Cal.App.5th 257, 261

Third Holding:

Section 954 defines what charges can be joined in one action. This statute does not permit multiple convictions for the same offense based on the same act or course of conduct. However, section 954 authorizes multiple convictions for different or distinct offenses. As a result, a defendant may be convicted of multiple counts of the same crime, such as grand theft, based on separate and distinct criminal acts, even if the acts were all part of a single overarching scheme.

Authority:

PEN 954

People v. Vidana (2016) 1 Cal.5th 632, 650

People v. Whitmer (2014) 59 Cal.4th 733, 74

Fourth Holding:

Determining whether a defendant has committed one or more criminal acts requires identifying what the Legislature intended to punish as a single offense under the relevant statute. Courts refer to this inquiry as determining the statute’s unit of prosecution. Courts should look to the characteristics of the crime, including both (1) the factual circumstances of the defendant’s criminal conduct and (2) the elements of the crime as defined by the Legislature in the relevant statute.

Authority:

Moore v. Superior Court (2020) 57 Cal.App.5th 441, 461

People v. Wilson (2015) 234 Cal.App.4th 193, 199-200

People v. Whitmer (2014) 59 Cal.4th 733, 744 (conc. opn. of Liu, J.)

Fifth Holding:

Section 136.1(a)(2) makes it a crime to knowingly and maliciously attempt to prevent or dissuade a witness from attending or giving testimony at a trial, proceeding or inquiry authorized by law. In relevant part, malice is defined under this statute as an intent to thwart or interfere in any manner with the orderly administration of justice. This crime is completed upon any attempt.

Authority:

PEN 136.1

People v. Kirvin (2014) 231 Cal.App.4th 1507, 1519

Sixth Holding:

A trial court’s decision whether to impose consecutive or concurrent sentences is reviewed for an abuse of discretion. A defendant bears the burden to clearly show that the sentencing decision was irrational or arbitrary. In the absence of such a showing, a reviewing court presumes the trial court acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on appeal. Moreover, a decision will not be reversed merely because reasonable people might disagree. Instead, the decision must be so irrational or arbitrary that no reasonable person could agree with it.

Authority:

PEN 669(a)

People v. Giminez (1975) 14 Cal.3d 68, 71–72

People v. Carmony (2004) 33 Cal.4th 367, 376–377

Seventh Holding:

Once a trial court lawfully decides to impose consecutive sentences on convictions for violating section 136.1, section 1170.15 applies. If a person is convicted of a felony, and of an additional felony that is a violation of section 136.1 or 137 and that was committed against the victim of, or a witness or potential witness with respect to, or a person who was about to give material information pertaining to, the first felony the Penal Code provides that those subordinate terms shall consist of the full middle term.

Authority:

PEN 1170.15

Eighth Holding:

In relevant part, the rule against the dual use of facts prohibits a trial court from relying on the same fact “to impose both the upper term and a consecutive sentence. Only a single factor in aggravation is needed to support imposition of an upper term. Likewise, only one relevant and sustainable fact may explain a series of consecutive sentences. We presume the trial court acted to achieve legitimate sentencing objectives

Authority:

People v. Scott (1994) 9 Cal.4th 331, 350, fn. 12

People v. Osband (1996) 13 Cal.4th 622, 730

People v. Carmony (2004) 33 Cal.4th 367, 376-377

Ninth Holding:

There is a developing split of authority regarding application of the forfeiture doctrine regarding the low term presumption under section 1170(b)(6). We need not decide that issue. Although the court did not specifically mention subdivision (b)(6), we presume it knew of that provision.

Authority:

People v. Achane (2023) 92 Cal.App.5th 1037, 1039, 1044 [forfeiture doctrine applied when defendant failed to raise in the trial court the presumption in favor of a lower term]

People v. Fredrickson (2023) 90 Cal.App.5th 984, 994, fn. 8 [sec. 1170 mandates application of the lower term presumption and is not subject to forfeiture]People v. Caparrotta (2024) 103 Cal.App.5th 874, 905

Tenth Holding:

Under the cumulative error doctrine, errors that are individually harmless may nevertheless have cumulative prejudice. A claim of cumulative error is essentially a due process challenge. The issue is whether the defendant received a fair trial. Here, appellant’s claim of cumulative prejudice is without merit because we have rejected the individual claims. After reviewing the entire record, we are confident that appellant received due process throughout the entire proceeding, including sentencing.

Authority:

In re Avena (1996) 12 Cal.4th 694, 772, fn. 32

People v. Rivas (2013) 214 Cal.App.4th 1410, 1436

People v. Bradford (1997) 14 Cal.4th 1005, 1057

People v. Cunningham (2001) 25 Cal.4th 926, 1009 [a defendant is “entitled to a fair trial but not a perfect one”]

Discretion, Sentencing, Sixth Amendment, Standard of review

Case 000641

Posted on by Gary McCurdy

Error and/or relief

The trial improperly relied on factors in aggravation that were not submitted to the jury for proof beyond a reasonable doubt.

First Holding:

In general, we review a trial court’s sentencing decisions for abuse of discretion. An abuse of discretion is found where the court relies upon circumstances that are not relevant to the decision or that otherwise constitute an improper basis for decision.

Authority:

People v. Gonzalez (2024) 107 Cal.App.5th 312, 323

Second Holding:

In 2022, section 1170(b) was amended to prohibit imposition of an upper term sentence unless aggravating circumstances justify that term and the facts underlying any such circumstance, other than a prior conviction, 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. In Erlinger, the United States Supreme Court rejected an argument that the jury trial exception regarding prior convictions also permits a judge to find perhaps any fact related to a defendant’s past offenses, including whether he committed them on different occasions within the meaning of the federal sentencing statute at issue. Instead, the Court held that a judge may do no more, consistent with the Sixth Amendment, than determine what crime, with what elements, the defendant was convicted of.

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 742

Erlinger v. United States (2024) 602 U.S. 821, 837, 838

Mathis v. United States (2016) 579 U.S. 500, 511–512

Third Holding:

Any fact, beyond the bare fact of a prior conviction, that exposes a defendant to harsher punishment, must be found by a jury beyond a reasonable doubt, unless the defendant stipulates to its truth or waives a jury trial. This jury trial guarantee retains its vitality even if the inquiry is straightforward. There is no efficiency exception to the Fifth and Sixth Amendments.

Only when aggravating facts have been proven as the Constitution requires may the court then rely on them to conclude, in its discretion, that those facts justify an upper term. A jury–not the judge, absent a jury waiver or stipulation–must determine whether the particular details of a defendant’s criminal history establish an unsatisfactory probation performance or demonstrate convictions of increasing seriousness, before a trial court can rely on those facts to justify an upper term sentence.

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.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1078, 1083–1084, 1086

Fourth Holding:

A Sixth Amendment violation occurs when the trial court relies on unproven aggravating facts to impose an upper term sentence, even if some other aggravating facts relied on have been properly established. The violation is prejudicial unless an appellate court can conclude beyond a reasonable doubt that a jury would have found true all of the aggravating facts relied upon by the trial court to justify an upper term sentence, or that those facts were otherwise proved true in compliance with the current statutory requirements. If the reviewing court cannot so determine, applying the Chapman standard of review, the defendant is entitled to a remand for resentencing.

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 768

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

People v. Gonzalez (2024) 107 Cal.App.5th 312, 331-333

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

Discretion, Sentencing

Case 000636

Posted on by Gary McCurdy

Error and/or relief

The matter was remanded to the lower court following the defendant’s first appeal in this case so that it could exercise its discretion to strike the vicarious gun use enhancements. On resentencing following the defendant’s first appeal in this case, the trial court imposed enhancements for the personal use of a firearm (sec. 12022.53(b), in lieu of the vicarious liability enhancements found true by the jury under subdivisions (d) and (e)(1) of section 12022.53.

The personal use of a firearm enhancements must be vacated because there was no jury finding that the defendant had personally used a firearm during the offense. The vicarious enhancement must be reimposed, and the matter should be remanded back to the trial court so that it may exercise its discretion to strike those enhancements.

First Holding:

A trial court has discretion to strike a section 12022.53(d) firearm enhancement and impose a lesser uncharged enhancement under subdivisions (b) or (c). A trial court is not categorically prohibited from imposing an uncharged, lesser-included enhancement when the prosecution has alleged the greater enhancement and the facts supporting the lesser enhancement have been alleged and found true.

Authority:

People v. Tirado (2022) 12 Cal.5th 688

Second Holding:

In Arellano, our Supreme Court held that a trial court resentencing a petitioner under section 1172.6 lacked authority to impose a firearm enhancement that had never been admitted or found true by a trier of fact. The enhancement had been dismissed as part of a negotiated disposition, and the trial court relied on police reports and other hearsay summaries to conclude that the defendant was armed.

The court rejected this approach and explained that resentencing under section 1172.6 is limited to the target offense or underlying felony. A similar defect occurred here. The jury never found that the defendant personally used a firearm. Instead, the jury returned true findings only under section 12022.53, subdivisions (d) and (e)(1), which required proof that a principal discharged a firearm during a gang-related offense, causing great bodily injury or death.

As in Arellano, the trial court later relied on its own factual findings from a collateral proceeding (a separate hearing on the defendant’s petition for resentencing under section 1172.6) to conclude that the defendant personally used a firearm during the offense. The trial court’s finding in a collateral proceeding was not sufficient to support imposition of the enhancement.

The matter is remanded for resentencing, during which the court shall exercise its discretion under section 1385 and Tirado to determine whether to strike or dismiss the lawfully adjudicated enhancements.

Authority:

People v. Arellano (2024) 16 Cal.5th 457, 464-465