Tag Archives: Discretion

Discretion, Standard of review

Case 000586

Posted on by Gary McCurdy

Error and/or relief

The trial court abused its discretion in finding the defendant unsuitable for mental health diversion, citing an unreasonable risk of danger to public safety.

First Holding:

The primary goal of section 1001.36 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. Advances in psychology and neuroscience inform this goal.

Authority:

Sarmiento v. Superior Ct. (2024) 98 Cal.App.5th 882, 898

Second Holding:

Section 1001.36 narrowly defines an unreasonable risk of danger to public safety as requiring an unreasonable risk that the defendant will commit one of several statutorily enumerated violent felonies colloquially known as super strikes.

Authority:

PEN 1001.36(c)(4)

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

Third Holding:

We review a trial court’s decision on whether to grant section 1001.36 diversion for abuse of discretion. In this context, 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.

Authority:

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

Fourth Holding:

In concluding that the defendant posed such a danger, the court found she was likely to continue selling fentanyl, that the fentanyl she sold was likely to kill someone, and that she could be prosecuted for such a death on a theory of implied malice murder. According to the court, this established an unreasonable risk that the defendant would commit a super strike—murder—and the court denied diversion.

The court’s reasoning rests on purely speculative factual findings unsupported by any evidence. Speculation is not evidence, less still substantial evidence. The court did not cite any other basis for denying diversion, nor do the People cite an alternative basis for affirming the court’s order. The court abused its discretion in denying diversion on this basis. Accordingly, we reverse.

Authority:

Wise v. DLA Piper LLP (2013) 220 Cal.App.4th 1180, 1188

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

Amelioration, Discretion, Duty of the court, Sentencing

Case 000585

Posted on by Gary McCurdy

Error and/or relief

On resentencing the defendant under section 1172.75, the trial court declined to consider dismissing a firearm enhancement, citing its desire not to get involved in changing the sentence of the original sentencing court and not to usurp the role of the parole board in assessing when defendant was ready for release. Because these rationales reflect an abdication of the court’s duty to exercise its sentencing discretion, we must reverse and remand for the court to exercise that discretion at a new, full resentencing.

First Holding:

The failure to exercise discretion is an abuse of discretion.

Authority:

People v. Bigelow (1984) 37 Cal.3d 731, 744

Dickson Carlson & Campillo v. Pole (2000) 83 Cal.App.4th 436, 449

Second Holding:

Where, as here, a defendant was originally sentenced for a prior prison term enhancement that arose from a conviction that was not a sexually violent offense, that defendant is entitled to a full resentencing where that enhancement is to be stricken and where the trial court is to apply any other changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing.

Authority:

People v. Superior Court (Guevara) (2025) 18 Cal.5th 838, 875

Third Holding:

The law regarding the 25 years-to-life firearm enhancement has changed since defendant’s original sentencing hearing in 2004: At that time, a trial court did not have discretion to dismiss that enhancement; since January 1, 2018, trial courts have had the power to dismiss firearm enhancements under section 12022.53 entirely or to substitute a lesser firearm enhancement in their place.

Authority:

PEN 12022.53

People v. Tirado (2022) 12 Cal.5th 688, 695-696

Fourth Holding:

Although we review a trial court’s discretionary sentencing decisions for an abuse of discretion a trial court abuses its discretion when it refuses to exercise that discretion. That is what happened here: What was supposed to be a full resentencing was merely a reaffirmation of a prior sentence and an abdication of discretionary decision-making to others whom the trial court believed were (or had been) better suited to the task. Section 1172.75 requires trial courts to get involved where, as here, the governing law has changed in a way that makes a lower sentence a possibility. What is more, section 1172.75 also enables a trial court to consider postconviction factors, which would be given no weight were a trial court to defer to the original sentence entered before any postconviction conduct comes to pass.

Authority:

PEN 1172.75

People v. Carmony (2004) 33 Cal.4th 367, 374

People v. Bigelow (1984) 37 Cal.3d 731, 744

People v. Rogers (2025) 108 Cal.App.5th 340, 361

Fifth Holding:

The presumption of regularity is rebutted when a trial court affirmatively indicates that it is not following the law.

Authority:

People v. Carter (2014) 227 Cal.App.4th 322, 324

People v. Panozo (2021) 59 Cal.App.5th 825, 839 [where the record is not silent, but rather is ‘at the very least ambiguous as to whether the court understood its statutory obligation, remand is appropriate]

Sixth Holding:

Upon remand, the court is to conduct the full resentencing mandated by section 1172.75. At that time, the court should calculate defendant’s actual custody credits from the date of arrest through the date of resentencing.

Authority:

PEN 2900.1

PEN 2900.5

People v. Buckhalter (2001) 26 Cal.4th 20, 29 [defendant entitled to all actual custody days since arrest, including date of resentencing]

Discretion, Standard of review, Sufficiency of and substantial evidence

Case 000578

Posted on by Gary McCurdy

Error and/or relief

There was insufficient evidence to support the trial court’s finding that placing the defendant on mental health diversion would present an unreasonable risk of danger to public safety. The denial of the request for diversion under section 1001.36 is reversed and remanded for further proceedings.

First Holding:

Section 1001.36 gives trial courts the discretion to grant pretrial diversion for individuals suffering from certain mental health disorders. The statute defines pretrial diversion as the postponement of prosecution, either temporarily or permanently, at any point in the judicial process from the point at which the accused is charged until adjudication, to allow the defendant to undergo mental health treatment.

The maximum period of diversion is two years. If the defendant performs satisfactorily in diversion, then at the end of the period of diversion, the court shall dismiss the defendant’s criminal charges that were the subject of the criminal proceedings at the time of the initial diversion, and the arrest upon which the diversion was based shall be deemed never to have occurred.

Authority:

PEN 1001.36

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

Second Holding:

Mental health diversion requires trial court findings that the defendant is both eligible for diversion and suitable for the program. The criteria for each are specified in the statute. 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.

They are suitable 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 in sections 1170.18 and 667(e)(2)(C)(iv).

Only the public safety suitability requirement necessitates a trial court finding.

Authority:

PEN 1001.36(b) and (c)

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

Third Holding:

As used throughout the Penal Code, “unreasonable risk of danger to public safety” means an unreasonable risk that the petitioner will commit a new violent felony within the meaning of section 667(e)(2)(C)(iv), which numerates particularly serious or violent felonies, known colloquially as “super strikes.”

Super strikes include any homicide offense, solicitation to commit murder, assault with a machine gun on a police officer or firefighter, possession of a weapon of mass destruction, or any serious or violent felony punishable by life imprisonment or death.

Authority:

PEN 1172.18

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

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 892, fn. 4

Fourth Holding:

Assuming 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.

Authority:

People v. Gerson (2022) 80 Cal.App.5th 1067, 1079

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.

Authority:

People v. Gerson (2022) 80 Cal.App.5th 1067, 1079

People v. Qualkinbush (2022) 79 Cal.App.5th 879, 888, 891

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

People v. Williams (2021) 63 Cal.App.5th 990, 1001 [scope of discretion always resides in the particular law being applied]

Sixth Holding:

A trial court’s ruling on a motion for mental health diversion is reviewed for an abuse of discretion, and factual findings are reviewed for substantial evidence. A trial court has broad discretion to determine whether a given defendant is a good candidate for mental health diversion. 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, 449

People v. Oneal (2021) 64 Cal.App.5th 581, 588

People v. Curry (2021) 62 Cal.App.5th 314, 324

People v. Bunas (2022) 79 Cal.App.5th 840, 848–849

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

Seventh Holding:

Section 1001.36(e) provides that the hearing on a defendant’s eligibility and suitability shall be informal and may proceed on offers of proof, reliable hearsay, and argument of counsel. In general, the court will find hearsay evidence trustworthy when there are sufficient indicia of reliability. The court, however, may not rely on unsubstantiated or unreliable evidence.

Authority:

People v. Buell (2017) 16 Cal.App.5th 682, 689 [hearsay that bears a substantial guarantee of trustworthiness is admissible in probation revocation proceedings]

Amelioration, Discretion, Eighth Amendment, Juveniles, Sentencing, Standard of review, Statutory interpretation

Case 000574

Posted on by Gary McCurdy

Error and/or relief

The defendant filed a petition under section 1170(d) for recall of his sentence. The trial court did not appoint counsel and summarily denied appellant’s petition to recall because it found he had not been incarcerated in the Department of Corrections and Rehabilitation for at least 15 years as required by section 1170(d)(1)(A). We find the trial court’s ruling on the calculation of appellant’s period of incarceration was erroneous as a matter of law, and appellant’s preconviction custody must be included to calculate he had been incarcerated for 15 years when he filed his section 1170(d) petition.

The matter is remanded for the superior court to appoint counsel and conduct the hearing as provided in section 1170(d).

First Holding:

When a defendant who was under 18 years of age at the time of the commission of the offense for which the defendant was sentenced to imprisonment for life without the possibility of parole has been incarcerated for at least 15 years, the defendant may submit to the sentencing court a petition for recall and resentencing, if the defendant meets additional statutory requirements.

Authority:

PEN 1170(d)

Second Holding:

When a trial court is not aware of the full scope of its sentencing discretion, a defendant is entitled to a 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. Salazar (2023) 15 Cal.5th 416, 425

People v. Lynch (2024) 16 Cal.5th 730, 771-772

Third Holding:

The empanelment of separate juries at the defendant’s original trial in 2010 was likely based on Aranda and Bruton. Broadly stated, the Aranda/Bruton rule declares that a defendant is deprived of his or her Sixth Amendment right to confront witnesses when a facially incriminating statement of a nontestifying codefendant is introduced at their joint trial, even if the jury is instructed to consider the statement only against the declarant. The problem addressed in Bruton and Aranda may be solved by the use of separate juries for codefendants, with each jury to be excused at appropriate times to avoid exposure to inadmissible evidence.

Authority:

People v. Aranda (1965) 63 Cal.2d 518

Bruton v. United States (1968) 391 U.S. 123

People v. Gallardo (2017) 18 Cal.App.5th 51, 68

People v. Jackson (1996) 13 Cal.4th 1164, 1208

People v. Washington (2017) 15 Cal.App.5th 19, 27

Fourth Holding:

Appellant filed his petition based on the recall and resentencing provisions of section 1170(d), effective January 1, 2013. Under Graham, the Eighth Amendment prohibits LWOP sentences for juvenile offenders who committed non-homicide offenses. In response to Graham, the Legislature enacted section 1170(d), creating a recall and resentencing procedure for certain juvenile offenders sentenced to LWOP terms.

Authority:

In re Kirchner (2017) 2 Cal.5th 1040, 1049

People v. Gibson (2016) 2 Cal.App.5th 315, 322–323

Graham v. Florida (2010) 560 U.S. 48

People v. Sorto (2024) 104 Cal.App.5th 435, 442

Fifth Holding:

On appeal, we review statutory interpretations de novo. We review the trial court’s factual findings to determine whether they are supported by substantial evidence, and do not reweigh or reinterpret the evidence.

Authority:

People v. Walker (2024) 16 Cal.5th 1024, 1032

People v. Millard (2009) 175 Cal.App.4th 7, 26

Sixth Holding:

Absent a specific statutory definition of “has been incarcerated for at least 15 years” we may look to its plain meaning as understood by the ordinary person, which would typically be a dictionary definition. The Legislature did not use the word sentenced in section 1170(d)(1)(A). Instead, it used the word “incarcerated.”

Based on the plain meaning of “incarcerated,” the defendant’s period of incarceration for purposes of a section 1170,(d)(1)(A) began to run on the date the defendant was placed in jail, i.e., incarcerated, for the relevant charges.

Authority:

People v. Ruiz (2024) 104 Cal.App.5th 1027, 1031, 1032

Seventh Holding:

Section 1171 expressly addresses the trial court’s procedures in postconviction proceedings to modify a sentence or conviction pursuant to an ameliorative statute. It defines a postconviction proceeding to mean a proceeding to modify a sentence or conviction pursuant to an ameliorative statute. Ameliorative statutes include, but are not limited to, Sections 1170.18, 1172.1, 1172.6, 1172.7, and 1172.75. Section 1171(c)(1) states that upon receiving a request to begin a postconviction proceeding that is authorized in law, the court shall consider whether to appoint counsel to represent the defendant. This section does not prevent the court from assigning counsel at a later time.

Authority:

PEN 1171

Appellate Principles, Discretion, Probation Parole PRCS, Sentencing, Standard of review, Sufficiency of and substantial evidence

Case 000563

Posted on by Gary McCurdy

Error and/or relief

The absence in this record of the necessary gang nexus requires the gang conditions of probation ordered here be stricken. The gang conditions were “25. Must not spend time with any person you know, or whom your probation officer tells you, is a gang member”; and “26. Must not wear or display any clothing, tattoos, or signs you know, or your probation officer tells you is evidence of affiliation with or membership in a gang. The word ‘gang’ means a criminal street gang as defined in California Penal Code Section 186.22.”

First Holding:

Crimes need not be gang-related to warrant the imposition of gang terms as conditions of probation.

Authority:

In re Ricardo P. (2019) 7 Cal.5th 1113, 1120–1121

Second Holding:

On appeal, we review conditions of probation for abuse of discretion. That is, a reviewing court will disturb the trial court’s decision to impose a particular condition of probation only if, under all the circumstances, that choice is arbitrary and capricious and is wholly unreasonable.

Authority:

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

People v. Moran (2016) 1 Cal.5th 398, 403

Third Holding:

A condition of probation will not be held invalid unless 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

Authority:

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

In re Ricardo P. (2019) 7 Cal.5th 1113, 1118–1119 [applying the three-part Lent standard to juvenile probation conditions]

Fourth Holding:

Courts may impose conditions that have a relationship to the crime of which the offender was convicted and may also impose conditions to foster rehabilitation and to protect public safety.

Authority:

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

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

Fifth Holding:

The conditions of probation aimed at rehabilitating the offender need not be so strictly tied to the offender’s precise crime as long as they are reasonably directed at curbing an offender’s future criminality. But there must be a strong connection between the burdens imposed by the challenged condition and a probationer’s criminal conduct or personal history. Conditions ordered may be properly based upon information in a probation report that raises concerns about future criminality unrelated to a prior offense. Thus, even if a condition of probation has no relationship to the crime of which a defendant was convicted and involves conduct that is not itself criminal, the condition is valid as long the condition is reasonably related to preventing future criminality.

Authority:

People v. Moran (2016) 1 Cal.5th 398, 404-405

In re Ricardo P. (2019) 7 Cal.5th 1113, 1120-1122

People v. Olguin (2008) 45 Cal.4th 375, 380

People v. Carbajal (1995) 10 Cal.4th 1114, 1121

Sixth Holding:

Nothing in the record suggests the offenses underlying the minor’s conduct were gang-related. Thus, we examine the record as a whole to determine if the gang conditions were reasonably related to preventing future criminality. In doing so, we find no indication of gang involvement. The record here presents no nexus sufficient to warrant the order of gang conditions

Authority:

People v. Olguin (2008) 45 Cal.4th 375, 379-380

In re Edward B. (2017) 10 Cal.App.5th 1228, 1236 [striking gang conditions because any connection between the minor’s offense and gang activity is speculation]

Seventh Holding:

Though the prosecutor argued in favor of the gangs condition, without a more specific connection to the record, expert opinion, or the minor’s personal circumstances, a district attorney’s non-expert observations cannot reasonably justify the imposition of gang conditions.

Authority:

People v. Stanley (2006) 39 Cal.4th 913, 961 fn. 10 [It is axiomatic that argument is not evidence]