Tag Archives: Discretion

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

Case 001112

Posted on by Gary McCurdy

Error and/or relief

It was error for the juvenile court to order the minor to pay restitution to the victim at the rate of (a specific dollar amount was named) per month, where the court had not ordered an amount of restitution that was owed, and had not declared that the amount could not be determined at the present time.

Remanded to the juvenile court. For the purposes of making an order regarding the amount of restitution payable by the minor, the court needs to determine what the amount of loss is, or if, instead, the loss cannot be ascertained at the time of disposition.

First Holding:

Welfare and Institutions Code section 730.6(a)(2) provides that upon a minor being found to be a person described in section 602, the court shall order the minor to pay, in addition to any other penalty provided or imposed under the law, restitution to the victim or victims, if any, in accordance with subdivision (b).

Authority:

WIC 730.6(a)(2)

Second Holding:

Section 730.6(b)(1) provides that restitution to the victim, who incurs an economic loss as a result of the minor’s conduct, shall be imposed in the amount of the losses, as determined. If the amount of loss cannot be ascertained at the time of sentencing, the restitution order shall include a provision that the amount shall be determined at the direction of the court at any time during the term of the commitment or probation.

Authority:

WIC 730.6(b)(2)

Third Holding:

Because the statute authorizes the restitution amount to be determined at any time during the term of the commitment or probation, restitution orders may be made after the disposition order, even years later.

Authority:

In re A.R. (2022) 78 Cal.App.5th 184, 187-188 [court affirmed 2021 restitution order where disposition order was made in 2016]

Fourth Holding:

Restitution in a juvenile wardship case may be ordered either pursuant to section 730.6, or alternatively as a condition of probation.

Authority:

WIC 730(a)(1)

In re T.C. (2009) 173 Cal.App.4th 837, 844-845 [holding that section 730.6 specifies when restitution must be imposed, and section 730 states when restitution may be imposed as a condition of probation]

Fifth Holding:

Generally, an order of restitution will not be overturned in the absence of an abuse of discretion. The court abuses its discretion when it acts contrary to law or fails to use a rational method that could reasonably be said to make the victim whole, and may not make an order which is arbitrary or capricious.

Authority:

In re Anthony M. (2007) 156 Cal.App.4th 1010, 1016

Sixth Holding:

The record should be harmonized if possible, including consideration of the probation report. However, we do not believe it is possible in this instance to do so.

(Gary note: The appellate court noted that the probation report’s observations and recommendations were inconsistent because of the lack of determination of the amount of restitution.)

Because of inconsistencies in the probation report, we cannot assume that the court incorporated its recommendations. We must remand to the juvenile court to make the necessary findings.

Authority:

People v. Smith (1983) 33 Cal.3d 596, 599

In re P.O. (2016) 246 Cal.App.4th 288, 292 fn. 4 [where the probation conditions in question only appear in a probation department form and nowhere else in the record, the reviewing court would nevertheless assume that these conditions were in fact imposed]

Discretion, Due process, Duty of the court, Eighth Amendment, Elements of crime, Equal protection, Fines and fees, Sentencing

Case 001110

Posted on by Gary McCurdy

Error and/or relief

The defendant was convicted under both section 4500 (assault by a life prisoner) and section 4501 (assault by means of force likely to produce great bodily injury by a prisoner) for the same act. Where section 4500 applies, the defendant cannot also be convicted of section 4501 for the same act.

The court misunderstood its discretion on imposing the minimum restitution fine. Also, the court failed to consider the defendant’s ability to pay before deteremining the amount of the restitution fine, and it did not recognize that it had discretion regarding the imposition of the assessments that it thought wer mandatory.

Defendant’s conviction for assault by a prisoner under section 4501(b) is reversed. We vacate the restitution fine, the court operations assessment, and the court facilities assessment and remand for the court to properly exercise its discretion regarding the amount of the restitution fine and immposition of assessments.

First Holding:

Penal Code section 4501(b) specifically states that, except as provided in section 4500, every person confined in the state prison of this state who commits an assault upon the person of another by any means of force likely to produce great bodily injury shall be guilty of a felony.

Sections 4500 and 4501 describe two mutually exclusive crimes. Section 4501’s “except as provided in section 4500” clause prevents the two statutes from covering the same conduct. It clarifies that when both statutes would otherwise apply, section 4500 governs and section 4501 is inapplicable. So when a defendant is convicted as provided in section 4500, the defendant cannot also be convicted as provided in section 4501 for the same conduct.

Authority:

People v. Nava (2024) 107 Cal.App.5th 624, 628-629

Second Holding:

The court erred in concluding that the amount of the restitution fine it imposed was the minimum required by statute. It imposed a $300 restitution fine for each of the seven counts of conviction, stating that $2100 was the minimum mandatory amount. The court misunderstood its discretion.

Section 1202.4(b) requires that in every case where a person is convicted of a crime, the court shall impose a separate and additional restitution fine of not less than $300 nor more than $10,000. This statute provides for a restitution fine in every case. A “case” is a formal criminal proceeding, filed by the prosecution and handled by the court as a separate action with its own number. The provision does not contemplate a separate restitution fine for each individual count.

The court misunderstood its discretion because the minimum restitution fine would be $300 for the entire case, not $300 per conviction. The matter must be remanded for reconsideration of the appropriate restitution fine.

Authority:

People v. McAllister (2026) 122 Cal.App.5th 92, 96

People v. Gutierrez (2014) 58 Cal.4th 1354, 1391 [Defendants are entitled to sentencing decisions made in the exercise of the informed discretion of the sentencing court]

Third Holding:

 A defendant may challenge the imposition of any fine as constitutionally excessive under the federal and state Constitutions. There is no due process requirement to hold an ability to pay hearing before imposing every punitive fine, but the excessive fines analysis, which considers ability to pay, is the proper vehicle to challenge punitive fines, such as the restitution fine under section 1202.4 and the parole revocation restitution fine under section 1202.45.

Authority:

People v. Kopp (2025) 19 Cal.5th 1, 13-14

Fourth Holding:

A defendant may seek to contest the defendant’s inability to pay the amount exceeding the statutory minimum. Under section 1202.4(c), inability to pay may be considered in increasing the amount of the restitution fine in excess of the minimum fine. Under 1202.4(d), in setting the amount of the fine in excess of the minimum fine the court shall consider any relevant factors, including, but not limited to, the defendant’s inability to pay.

Authority:

PEN 1202.4(c), (d)

People v. Kopp (2025) 19 Cal.5th 1, 23-24

Fifth Holding:

If a defendant requests, a trial court must consider the defendant’s inability to pay before imposing a court operations assessment under Penal Code section 1465.8(a)(1) or a court facilities assessment under Government Code section 70373(a)(1). Given that the Legislature has provided fee waivers to indigent civil litigants, equal protection principles require a court, upon request, to consider a criminal defendant’s inability to pay before imposing either assessment.

Authority:

People v. Kopp (2025) 19 Cal.5th 1, 30

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

Case 001108

Posted on by Gary McCurdy

Error and/or relief

The record is ambiguous whether the trial court misunderstood its discretion to dismiss or strike an enhancement pursuant to Penal Code section 1385. Accordingly, we vacate the sentence and remand for resentencing.

First Holding:

Section 1385 governs a trial court’s discretion to dismiss various elements of an action or sentence. Under section 1385(a), the trial court may in furtherance of justice, order an action to be dismissed. This authority includes the power to dismiss or strike a sentencing enhancement.

Section 1385(b)(1) states that, if the court has the authority pursuant to subdivision (a) to strike or dismiss an enhancement, the court may instead strike the additional punishment for that enhancement in the furtherance of justice. In other words, striking an enhancement is different from striking the punishment for the enhancement.

Authority:

PEN 1385

People v. Thomas (1992) 4 Cal.4th 206, 209

People v. Tang (2025) 109 Cal.App.5th 1003, 1010

Second Holding:

Prior to 2022, section 1385 did not provide direction as to how courts should exercise that discretion” to dismiss or strike enhancements. Effective January 1, 2022, SB 81 amended section 1385 to specify mitigating circumstances courts must consider when deciding whether to strike enhancements in furtherance of justice.

SB 81 added subdivision (c) to section 1385, which now provides, in part:

(1) 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.

(2) 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 enumerated mitigating circumstances 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.

As relevant here, the enumerated mitigating circumstances include that the current offense is connected to mental illness and the current offense is connected to prior victimization or childhood trauma.

Authority:

PEN 1385(c)(2)(A) through (I) [a list of nine mitigating circumstances to be given great weight)

People v. Anderson (2023) 88 Cal.App.5th 233, 238

People v. Dain (2025) 115 Cal.App.5th 235, 246

Third Holding:

Under section 1385(c), 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.

That is, 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. If a trial court dismisses an enhancement pursuant to section 1385(c), then both the enhancement and its punishment must be dismissed.

Authority:

PEN 1385(c)

Cal. Rules of Court, rule 4.428(c)(3)

People v. Walker (2024) 16 Cal.5th 1024, 1029

Fourth Holding:

We review a court’s sentencing choices for abuse of discretion. A defendant is entitled to a sentencing decision made in the exercise of informed discretion. We presume the court knows and applies the applicable law, absent evidence to the contrary. Where the record affirmatively discloses that the trial court misunderstood the scope of its discretion, remand to the trial court is required to permit that court to impose sentence with full awareness of its discretion. Additionally, a record that is, at best, ambiguous about whether the court understood its sentencing discretion warrants remand.

(Gary note: The opinion then discusses how it concludes that the record is ambiguous on whether the court understood the scope of it discretion.)

Authority:

People v. Nielsen (2026) 119 Cal.App.5th 816, 823

People v. Fuhrman (1997) 16 Cal.4th 930, 944

People v. Brown (2007) 147 Cal.App.4th 1213, 1229 [Remand is unnecessary if the record is silent concerning whether the trial court misunderstood its sentencing discretion. Error may not be presumed from a silent record.]

People v. Ochoa (2020) 53 Cal.App.5th 841, 852–853

Fifth Holding:

The proper remedy is a remand for resentencing. Remand would be unnecessary if the record clearly indicated that the trial court would have reached the same conclusion even if it had been aware of its discretion. But we cannot conclude that the record here so clearly indicates such a result. That is, the record does not demonstrate with unusual clarity that remand would be an idle act.

Authority:

People v. Fuhrman (1997) 16 Cal.4th 930, 944

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

People v. Flores (2020) 9 Cal.5th 371, 432

Sixth Holding:

The presence of a mitigating circumstance enumerated in section 1385(c)(2) does not dictate that an enhancement should be dismissed. Instead, the ultimate question before the trial court remains whether it is in the furtherance of justice to dismiss an enhancement.

This means that, absent a danger to 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, 1033

People v. Bravo (2025) 107 Cal.App.5th 1144, 1157

Seventh Holding:

The defendant further argues that the court erred in limiting his conduct credit to 15% under section 2933.1 We reject the People’s contention that the defendant forfeited his claim of conduct credit error by failing to object below.

To the extent his claim could be forfeited, we would exercise our discretion to consider it because it involves a pure question of law presented by undisputed facts and to forestall a petition for writ of habeas corpus based on ineffective assistance of counsel. However, given our disposition, we do not reach the merits of the defendant’s challenge to his conduct credit award.

Authority:

People v. Hines (1997) 15 Cal.4th 997, 106

In re Sheena K. (2007) 40 Cal.4th 875, 887, fn. 7

People v. Williams (2000) 78 Cal.App.4th 1118, 1126

Amelioration, Discretion, Duty of the court, Sentencing, Standard of review, Statutory interpretation

Case 001102

Posted on by Gary McCurdy

Error and/or relief

The trial court erred when it found the defendant unsuitable for Proposition 36 rehabilitation when it had not ordered and considered an evaluation by a drug addiction expert as required by Penal Code section 11395,(d)(1)(B).

First Holding:

Section 11395, known as the “Treatment-Mandated Felony Act,” was enacted as part of Proposition 36, which was approved by voters in November 2024. The statute gives repeat hard drug possession offenders the option of participating in drug and mental health treatment.

The individual must plead guilty or no contest to again possessing a hard drug, admit the alleged prior qualifying convictions, waive time for sentencing or judgment, and agree to participate in treatment.

If he or she successfully completes treatment, the defendant’s plea shall not constitute a conviction for any purpose. Such individuals are not to be sentenced to jail or prison unless a court determines that the person is not eligible or suitable for treatment.

Authority:

HSC 11395

Second Holding:

The statute further states that, upon or subsequent to arraignment for a violation of the section, and at the request or with the consent of the defendant or their attorney, the court shall order a drug addiction expert to conduct a substance abuse and mental health evaluation of the defendant. The evaluation may be based on an interview of the defendant or others with relevant knowledge, and can include “medical records, criminal history, prior treatment history, and records pertaining to the current offense. The expert shall submit a report of the evaluation to the court and the parties.

Authority:

HSC 11395(d)(1)(B)

Third Holding:

We review de novo the trial court’s interpretation of the statute as allowing it to find defendant unsuitable for treatment without first obtaining the drug addiction expert report. Our task is to determine the electorate’s intent so as to effectuate the law’s purpose. We turn first to the language of the provision, giving the words their ordinary meaning.

We construe the language in the context of the statute as a whole and the overall statutory scheme in light of the electorate’s intent. If the statutory language is unambiguous, the plain meaning controls and consideration of extrinsic sources to determine the electorate’s intent is unnecessary.

Authority:

People v. Fouse (2024) 98 Cal.App.5th 1131, 1145

Robert L. v. Superior Court (2003) 30 Cal.4th 894, 900-901 [a reviewing court applies the same principles that govern statutory construction when interpreting a voter initiative]

Smith v. Superior Court (2006) 39 Cal.4th 77, 83

Kavanaugh v. West Sonoma County Union High School Dist. (2003) 29 Cal.4th 911, 919

Fourth Holding:

Given section 11395’s clear language, we need not look beyond the statute itself to discern the electorate’s intent. As the statute makes clear, immediately upon or after arraignment for violating the statute, and either at the request or with the consent of the defendant or their attorney, the trial court “shall” order a drug addiction expert evaluation, and that report “shall” be submitted to the court and the parties. While the trial court has the discretion ultimately to decide that a defendant is unsuitable for treatment once the court considers the drug addiction expert’s evaluation, the expert’s evaluation must come first.

The trial court abused its discretion when it decided, notwithstanding the statutory provisions, that defendant was unsuitable for treatment before obtaining the necessary report.

Authority:

HSC 11395(d)(1)(B)

Abstracts and Minutes, Discretion, Sentencing, Standard of review

Case 001074

Posted on by Gary McCurdy

Error and/or relief

The trial court misunderstood the scope of its discretion when it considered the defendant’s request for resentencing under section 1172.1. It believed that it was bound by the decision affirming his conviction at his original appeal and by the later decision denying his motion to have his conviction vacated under section 1172.6.

The evidence on which the defendant relied in requesting resentencing under section 1172.1, however, was not available at the time of his first appeal, and the issue under section 1172.6 dealt solely with liability under the felony murder theory or the natural and probable consequences theory of murder. Neither dealt with the constitutional issues regarding the failure of the prosecution to provide potentially exculpatory evidence or information in the first place.

The comments of the court in the course of considering the request under section 1172.1 suggest that the court did believe that there were constitutional issues with the conviction, and might have been willing to grant additional relief had it understood that section 1172.1 does, indeed, give it the authority to revisit the conviction. Therefore, we remand for the court to reconsider whether the defendant’s sentence should be recalled and reexamined under section 1172.1.

Further, the restitution fine must be stricken as more than 10 years old, and the court must recalculate the credit for time served.

First Holding:

Section 1172.1 is a statutory exception to the general rule that once a judgment is rendered and execution of the sentence has begun, the trial court does not have jurisdiction to vacate or modify the sentence. As amended effective January 1, 2024, section 1172.1(a) authorizes the court to recall a sentence and resentence the 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.

Section 1172.1 does not authorize the defendant to initiate the recall and resentencing process. The statute states: ‘A defendant is not entitled to file a petition seeking relief from the court under this section. If a defendant requests consideration for relief under this section, the court is not required to respond.”

Authority:

People v. Craig (2026) 117 Cal.App.5th 1165, 1170-1171

Second Holding:

Section 1172.1(a)(2) instructs a trial court, when recalling and resentencing a defendant, to apply the sentencing rules of the Judicial Council and apply any changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing.

Trial courts may modify a defendant’s sentence to reduce the term of imprisonment. They may also vacate a defendant’s 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, with the concurrence of the defendant, and then resentence the defendant to a reduced term of imprisonment.

The statute lists various postconviction factors trial courts must consider when recalling and resentencing a defendant. Those factors include the disciplinary record and record of rehabilitation of the defendant while incarcerated and evidence that reflects that circumstances have changed since the original sentencing so that continued incarceration is no longer in the interest of justice.

Evidence that the defendant’s incarceration is no longer in the interest of justice includes, but is not limited to, evidence that the defendant’s constitutional rights were violated in the proceedings related to the conviction or sentence at issue, and any other evidence that undermines the integrity of the underlying conviction or sentence.

A trial court shall state on the record the reasons for its decision to grant or deny recall and resentencing.

Authority:

PEN 1172.1

Third Holding:

We review the superior court’s decision whether to recall a defendant’s sentence for abuse of discretion. To establish an abuse of discretion, a defendant must establish the court acted while unaware of the scope of its discretion, considered impermissible factors, or made a choice so irrational or arbitrary that no reasonable person could agree with it.

Authority:

People v. Craig (2026) 117 Cal.App.5th 1165, 1175

People v. Olea (2025) 115 Cal.App.5th 889, 902–903

Fourth Holding:

The right to appeal is statutory only, and a party may not appeal a trial court’s judgment, order or ruling unless such is expressly made appealable by statute. Section 1237(b) allows a defendant to appeal from any order made after judgment, affecting the substantial rights of the party.

Authority:

People v. Craig (2026) 117 Cal.App.5th 1165, 1171

Fifth Holding:

Section 1172.1 does not give a defendant the right to make a motion or to appeal if the trial ignores the request or summarily denies it without taking action.

Craig held that a trial court’s order denying a request for resentencing under section 1172.1 was appealable after the trial court reviewed moving and opposition papers; looked at documents and case history, including letters of support, evidence of rehabilitation, and prison disciplinary records; heard argument from counsel at a hearing at which the defendant appeared remotely; and addressed the merits of the petition instead of denying it as unauthorized.

Olea held that a denial was appealable after the trial court followed similar steps, including appointing counsel for the defendant, ordering the release of subpoenaed records concerning the defendant’s behavior and activities in prison, and setting a contested hearing at which the defendant appeared remotely, the court heard argument, indicated it reviewed the record, and stated it believed the original sentence was just.

The situation before us is similar to that encountered in Craig and Olea, not to that in Hodge, and we hold that the decision to deny resentencing under section 1172.1 is appealable under these circumstances.

Authority:

People v. Hodge (2024) 107 Cal.App.5th 985, 991, 996, 999 [a trial court’s order declining to exercise its discretion to recall a defendant’s sentence was not appealable]

People v. Craig (2026) 117 Cal.App.5th 1165, 1171-1175

People v. Olea (2025) 115 Cal.App.5th 889, 901-902

Sixth Holding:

The trial court’s reasons for rejecting evidence that seriously undermined the conviction were impermissible. The court stated it was not its place to revisit the jury’s determination, even though section 1172.1 empowers the court to do just that. Under section 1172.1(a)(3)(B), when resentencing, a trial court may cacate the defendant’s conviction and impose judgment on any necessarily included lesser offense or lesser related offense, with the consent of the defendant. The court’s comments during the hearing very clearly indicated that it acknowledged the problems with the convictions as the defendant and his counsel described. The court did reduce the sentence substantially to the minimum for second degree murder.

When a trial court has given both proper and improper reasons for a sentence choice, a reviewing court will set aside the sentence only if it is reasonably probable that the trial court would have chosen a lesser sentence had it known that some of its reasons were improper.

There is such a reasonable probability here, since the trial court seemed to feel constrained by the verdict and prior appeals, and never appeared to grapple with the gravity of the constitutional violations the defendant alleged, simply referring to them as a number of things that happened. We therefore agree with the defendant that a remand is warranted so that the trial court can exercise its discretion again. The trial court should explain its rationale regarding the defendant’s claims of violations of his constitutional rights and whether or not those claims justify a further reduction in the defendant’s sentence.

Authority:

PEN 1172.1(a)(3)(B)

People v. Mendoza (2022) 74 Cal.App.5th 843, 856

Seventh Holding:

The restitution fine was imposed more than 10 years ago and must be vacated under section 1465.9(d), which states 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.

Authority:

PEN 11465.9(d)

People v. Salstrom (2025) 117 Cal.App.5th 596, 600–601, review granted on another issue and further action deferred Mar. 11, 2026, S289903

Eighth Holding:

The court did not recalculate the defendant’s time served, and the abstract still reflects the same number of days as awarded at his original sentence more than 15 years ago. The court should have recalculated the credit for time served.

Authority:

People v. Buckhalter (2001) 26 Cal.4th 20, 29 [when resentencing a defendant, trial court must update the calculation of actual time served, whether before or after sentencing and in jail or prison]

People v. Dean (2024) 99 Cal.App.5th 391, 397 [Department of Corrections and Rehabilitation, not trial court, is responsible for calculating post-sentence credits other than actual time served]