Tag Archives: Discretion

Appellate Principles, Discretion, Sentencing

Case 000631

Posted on by Gary McCurdy

Error and/or relief

The sentence for either the attempted murder or the domestic violence should have been stayed pursuant to section 654, because both convictions were based on the same act, namely, the defendant’s act of running over the victim with his SUV.

First Holding:

This matter had previously been remanded for the court to consider its discretion on the application of section 654 as to which count should be sentenced on and which should be stayed. The original judge had retired. The resentencing judge’s statements make clear that in determining whether to stay the sentence on count 1 or count 2, he was deferring to and believed himself to be bound by the sentencing choices already made by the original sentencing court. He did not exercise his own discretion to decide which sentence should be stayed under section 654. Rather, he expressed the belief that the original sentencing judge had already made the relevant determination.

That was error. The original sentencing judge declined to apply section 654 at all, so she never exercised her discretion to decide which sentence should be stayed under section 654. To date, no judge has exercised their discretion on that issue. Because the record does not clearly indicate which sentence the resentencing judge would have stayed had he exercised his discretion, the judge’s failure to exercise his discretion is not harmless.

(GARY note #1: The court did not readdress what section 654 does. As noted, this is the second appeal in the case. The unpublished opinion in the first appeal dealt exclusively with the application of section 654, and the court likely felt it was unnecessary to repeat itself in this second appeal, because its application was not the new question. Instead, it was the failure of the resentencing judge to act independently from the original judge’s views. Under section 654, a single act, or multiple acts during a course of action with a single intent and objective, may result in conviction of multiple crimes, but may be punished under only one of them. The court may choose which count to impose and execute sentence on, and must stay execution on the other count(s) to which section 654 applies. Imposition of a concurrent term is not an option.)

(GARY note #2: The court did not discuss the significance of a trial court’s failure to exercise discretion. But there is ample authority discussing the steps for an appellate court to deal with situations where the lower court did not recognize that it had discretion and it appears that there could have been a different outcome had the judge recognized it and exercised its discretion in an informed manner. I have set out some of the statements from some such cases below as Second Holding and Third Holding, but they were not cited in this opinion, likely because, as this court stated in the unpublished opinion, no judge had ever actually exercised the discretion required under section 654. Always keep in mind, however, that when I use the term “likely” in my notes, it is pure speculation on my part.)

Authority:

PEN 654

Second 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

Third Holding:

Where a sentencing court was not fully aware of the scope of its discretionary powers, the appropriate remedy is to remand for resentencing unless the record clearly indicates that the court would have reached the same conclusion even it had been aware it had such discretion.

Authority:

People v. Superior Court (Guevara) (2025) 18 Cal.5th 838, 878, fn. 16

People v. Leon (2016) 243 Cal.App.4th 1003, 1026 [relief from a trial court’s misunderstanding of its sentencing discretion is available on direct appeal when such misapprehension is affirmatively demonstrated by the record]

Discretion, Standard of review

Case 000618

Posted on by Gary McCurdy

Error and/or relief

We will reverse the conviction and remand for the trial court to reconsider defendant’s suitability for mental health diversion according to the factors in section 1001.36(c) and defendant’s current circumstances. To the extent the court exercises its residual discretion under section 1001.36(a), it must take into account the Legislature’s intent and the statute’s underlying purposes.

Although we express no opinion as to how the court should decide the matter on remand, we note that the suitability inquiry must be informed not only by defendant’s past performance but also by his present circumstances and prospects for diversion compliance.

First Holding:

Since 2018, section 1001.36 has afforded trial courts discretion to grant criminal defendants suffering from certain recognized mental disorders pretrial diversion to receive mental health treatment. Diversion allows for the suspension of criminal proceedings and potential dismissal of charges upon successful completion of mental health treatment. The express purpose of the legislation was to increase diversion of eligible individuals, and legislative amendments have only confirmed the Legislature’s desire to expand mental health treatment through diversion.

Authority:

PEN 1001.36

People v. Brown (2024) 101 Cal.App.5th 113, 119

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

Second Holding:

As currently enacted, a defendant accused of a qualifying offense is eligible for mental health diversion if the defendant has been diagnosed with a qualifying mental health disorder which was a significant factor in the commission of the charged offense. If a defendant is found eligible for mental health diversion, a trial court must also consider whether the defendant is suitable for diversion.

According to the statute, a defendant is suitable for diversion if, in the opinion of a mental health expert, the defendant’s symptoms would respond to treatment; the defendant consents to diversion and waives his right to a speedy trial; the defendant agrees to comply with treatment; and the defendant will not pose an “unreasonable risk of danger to public safety” as defined in section 1170.18.

Section 1170.18 defines “unreasonable risk of danger to public safety” as an unreasonable risk that the defendant will commit one of certain enumerated violent felonies, known colloquially as “super strikes.”

Authority:

PEN 1001.36

PEN 1170.18

Third Holding:

Even if a defendant meets the enumerated suitability criteria, a trial court retains discretion to deny diversion. But that residual discretion must be exercised consistent with the principles and purpose of the governing law. We review a decision to deny diversion for abuse of discretion.

Authority:

People v. Qualkinbush (2022) 79 Cal.App.5th 879, 887, 888, 891

Fourth Holding:

We see no substantial evidence in the record that would have supported an unsuitability finding as defined under the statute. Section 1001.36(c) prescribes specific suitability factors and does not expressly contemplate a finding of unsuitability based on other factors not identified in the statute. We acknowledge it is possible to construe the court’s finding of unsuitability as an exercise of its residual discretion under section 1001.36(a).

But the only reasoning articulated by the court involved defendant’s criminal history and past failures to appear (which could themselves have been connected to a mental health disorder), his past difficulties complying with treatment (notwithstanding the evaluators’ conclusions about his prospects for future treatment), and the circumstances of the charged offense. The trial court’s statement of the reasons for its decision thus did not 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, 893

Discretion, Standard of review

Case 000617

Posted on by Gary McCurdy

Error and/or relief

The petitioner unsuccessfully moved for mental health diversion under Penal Code section 1001.36. In petitioning this court for a writ of mandate, the petitioner contends that the trial court erred in finding him ineligible on six counts and eligible but unsuitable on the seventh count. We agree. We therefore grant the petition and direct the trial court to vacate its order denying the motion for mental health diversion and hold a new hearing on the motion.

First Holding:

In 2018, the Legislature enacted section 1001.36 to create a program of pretrial diversion for criminal defendants with diagnosed mental health disorders. Diversion allows for the suspension of criminal proceedings and potential dismissal of charges upon successful completion of mental health treatment.

The express purpose of this legislation was to increase diversion of such individuals based on concerns that incarceration only serves to aggravate their preexisting conditions and does little to deter future lawlessness. Successful mental health treatment, in contrast, both helps the individual and makes the community safer. More recent amendments have only confirmed the Legislature’s desire to expand mental health treatment through diversion.

Authority:

PEN 1001.36

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

Second Holding:

Effective January 1, 2023, 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 specific 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).

Authority:

PEN 1001.36

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

Third Holding:

A defendant’s eligibility no longer turned on findings to the court’s satisfaction. Rather, defendants are generally eligible if they have been diagnosed with a recognized mental disorder. Beyond that, the amended statute creates a presumption that the defendant’s diagnosed mental disorder was a significant factor in the commission of the charged crime.

The court is directed to find a causal connection unless there is clear and convincing evidence that the mental disorder was not a motivating factor, causal factor, or contributing factor to the defendant’s involvement in the alleged offense. In practical terms, following the 2022 amendments, defendants with a proper mental health diagnosis will seldom be ineligible for diversion. The more difficult question will be determining whether they are suitable.

Authority:

PEN 1001.36

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

People v. Harlow (2025) 113 Cal.App.5th 485, 490

Fourth Holding:

We review for substantial evidence a court’s finding by clear and convincing evidence that a mental disorder was not a motivating factor, causal factor, or constributing factor. We consider 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.

Authority:

PEN 1001.36(b)(2)

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

Fifth Holding:

Of the four factors set forth in the statute regarding suitability, only the fourth necessitates a trial court finding–that the defendant will not pose an unreasonable risk of danger to public safety if treated in the community. But that risk is severely limited by incorporation of sections 1170.18 and 667(e)(2)(C)(iv) as the definition of unreasonable risk of danger to public safety and the list of felonies conviction of which would preclude eligibility.

Authority:

PEN 1001.36

PEN 1170.18

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

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

Sixth 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

Seventh Holding:

To the extent the court’s finding of unsuitability could be based on any of the four eligibility factors, it is unsupported by substantial evidence.

Authority:

Flareau v. Superior Court of Riverside County (2026) 118 Cal.App.5th 681, 690 [when reviewing the trial court’s suitability finding, we must determine whether substantial evidence supports the trial court’s findings concerning the four suitability factors]

Eighth Holding:

The People argue that the trial court’s suitability finding was instead its use of its residual discretion. If that is the case, however, the trial court abused its discretion by failing to consider the underlying purposes of section 1001.36 or explain why diversion would not meet those goals.

Authority:

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

Discretion, Juveniles, Standard of review, Sufficiency of and substantial evidence

Case 000613

Posted on by Gary McCurdy

Error and/or relief

In decided the transfer the juvenile’s case to adult court, the court erred in evaluating whether the minor can be rehabilitated prior to expiration of the juvenile court’s jurisdiction and based its decision at least in part on unreliable data presented by a prosecution witness. We remand for the juvenile court to reconsider the second criterion under section 707(a)(3)(B), consistent with this opinion, whetherthe minor can be rehabilitated prior to the expiration of the court’s jurisdiction.

In addition, the court is to make a finding whether, in light of all five statutory criteria, the People have met their burden of demonstrating by clear and convincing evidence that the minor. is not amenable to rehabilitation.

First Holding:

Under Welfare and Institutions Code section 707(a)(1), when a minor 16 years or older is alleged to have committed a felony, the prosecution may make a motion to transfer the minor from juvenile court to a court of criminal jurisdiction. The prosecution bears the burden of proving by clear and convincing evidence that the minor is not amenable to rehabilitation while under the jurisdiction of the juvenile court.

The clear and convincing evidence standard demands a degree of certainty greater than that involved with the preponderance standard, but less than what is required by the standard of proof beyond a reasonable doubt Where clear and convincing proof is required, the proponent must convince the jury or judge that it is highly probable that the facts which he asserts are true.

Authority:

WIC 707(a)(1)

Cal. Rules of Court, rule 5.770(a)

In re J.S. (2024) 105 Cal.App.5th 205, 211 and fn. 2

In re Miguel R. (2024) 100 Cal.App.5th 152, 164

Conservatorship of O.B. (2020) 9 Cal.5th 989, 998

Second Holding:

There are five criteria set forth in Welfare and Institutions Code section 707 that a court is required to consider in deciding whether a minor should be transferred to a court of criminal jurisdiction, including ((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.

For each of these five criteria, section 707 provides a nonexhaustive mandatory list of factors to which a juvenile court shall give weight in evaluating the criterion.

Authority:

WIC 707(a)(3)(A)-(E)

Third Holding:

Under the second factor, the court must focus on whether there is enough time to rehabilitate the minor while the minor is still eligible to remain under juvenile court jurisdiction.

Authority:

In re Miguel R. (2024) 100 Cal.App.5th 152, 166

Fourth Holding:

We review the juvenile court’s ruling on a transfer motion for abuse of discretion. The abuse of discretion standard is not a unified standard; the deference it calls for varies according to the aspect of a trial court’s ruling under review.

The juvenile court’s findings with respect to each of section 707’s five criteria are findings of fact reviewed for substantial evidence. In conducting substantial evidence review, we draw all reasonable inferences in support of the court’s findings.

The juvenile court’s ultimate finding that a minor is not amenable to rehabilitation while under its jurisdiction is likewise reviewed for substantial evidence.

Authority:

In re Miguel R. (2024) 100 Cal.App.5th 152, 165

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

People v. Cardenas (2020) 53 Cal.App.5th 102, 119

Fifth Holding:

Because the juvenile court must make these findings by clear and convincing evidence, we review its findings by determining whether the record, viewed as a whole, contains substantial evidence from which a reasonable trier of fact could have made the finding of high probability demanded by the clear and convincing evidence standard. The juvenile] court’s conclusions of law are reviewed de novo, and its application of the law to the facts is reversible only if arbitrary and capricious.

Authority:

Conservatorship of O.B. (2020) 9 Cal.5th 989, 1005

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

In re Miguel R. (2024) 100 Cal.App.5th 152, 165

In re J.S. (2024) 105 Cal.App.5th 205, 211

Amelioration, Discretion, Sentencing, Standard of review

Case 000610

Posted on by Gary McCurdy

Error and/or relief

The court erroneously believed that the defendant was categorically ineligible for resentencing under section 1172.75 because he was serving an indeterminate sentence under the “Three Strikes” law. Because the record does not clearly indicate that the court would have made the same decision had it been aware of the full scope of its resentencing power and discretion, we reverse and remand the matter with directions for the court to conduct a full resentencing under section 1172.75.

First Holding:

Once the trial court confirms that the underlying judgment includes an invalid prior prison term enhancement, the court must recall the sentence and resentence the defendant. A defendant who is eligible for relief under section 1172.75 is entitled to a full resentencing.

Authority:

PEN 667.5

PEN 1172.75

People v. Rhodius (2025) 17 Cal.5th 1050, 1067, fn. 3

Second Holding:

Section 1172.75(d) establishes several parameters for resentencing.

First, the resentencing shall result in a lesser sentence than the one originally imposed as a result of the elimination of the repealed enhancement, unless the court finds by clear and convincing evidence that imposing a lesser sentence would endanger public safety.

Second, the court must apply the sentencing rules of the Judicial Council and 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.

Third, the court may consider postconviction factors that speak to whether continued incarceration remains in the interest of justice, such as the defendant’s physical condition and records of discipline and rehabilitation while incarcerated.

Finally, unless the court originally imposed the upper term, the court may not impose a sentence exceeding the middle term unless there are circumstances in aggravation that justify the imposition of a term of imprisonment exceeding the middle term, and those facts 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.

Authority:

PEN 1172.75

Third Holding:

A trial court has the authority to exercise its discretion under section 1385(a) and Romero to strike any or all of a defendant’s strike priors after recalling his sentence and for the purposes of resentencing him under section 1172.75. As the court in Rogers explained, because a trial court’s power under section 1385(a) to dismiss or strike a strike prior is independent of either the Three Strikes law or the subsequent Three Strikes Reform Act of 2012, any exercise of that power at a resentencing proceeding under section 1172.75 does not offend either.

Authority:

People v. Superior Court (Romero) (1996) 13 Cal.4th 497

People v. Rogers (2025) 108 Cal.App.5th 340, 362, 364

Fourth Holding:

Where, as here, a trial court sentences a defendant without being aware of the full scope of its sentencing discretion, remand is required to allow the court to fully exercise that discretion unless the record clearly indicates that the court would have reached the same decision had it been aware of the scope of its discretion.

Authority:

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

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]

Discretion, Effective assistance of counsel, Elements of crime, Sentencing

Case 000558

Posted on by Gary McCurdy

Error and/or relief

The restitution amount is wrong, and the protective order is unauthorized.

First Holding:

Appellant contends changes to section 1001.36 that went into effect after she was denied pretrial diversion apply to her case. We agree. Appellant further contends this matter should be conditionally reversed and remanded so the trial court can exercise its discretion to determine her motion for pretrial diversion in light of the amendment. We disagree.

Appellant has forfeited this claim. Frahs, decided in 2020, made clear that recently enacted section 1001.36 applied in nonfinal cases. Thus, when the law was amended effective January 1, 2023, appellant should have known the amendments applied retroactively. Once the law was amended, appellant had more than three months before she pled and more than seven months before she was sentenced to seek reconsideration of the trial court’s denial of diversion. She did not.

Authority:

People v. Frahs (2020) 9 Cal.5th 618, 631-632

People v. Doron (2023) 95 Cal.App.5th 1, 6

People v. Trujillo (2015) 60 Cal.4th 850, 856

People v. Brown (2024) 101 Cal.App.5th 113, 128 [failure to seek reconsideration excused where amendment to statute effective after entry of plea but only 10 days before sentencing]

Second Holding:

In order to establish a claim for ineffective assistance of counsel, a defendant must show that his or her counsel’s performance was deficient, and that the defendant suffered prejudice as a result of such deficient performance. The record is silent, however, why defense counsel failed to seek reconsideration under the amended law.

It is possible that counsel was unaware of the newly passed statute. It is also possible, however, that counsel had sound reasons not to pursue the issue. For example, appellant may have changed her mind and decided to refuse to accept the treatment required for participation in the diversion program. Because trial counsel’s reasons for not raising the issue are not readily apparent, the issue is more appropriately considered in a habeas corpus proceeding.

Authority:

People v. Mickel (2016) 2 Cal.5th 181, 198

Strickland v. Washington (1984) 466 U.S. 668, 687-692

People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267

People v. Wilson (1992) 3 Cal.4th 926, 936

Third Holding:

We review the trial court’s restitution order for abuse of discretion. We apply the substantial evidence standard in a challenge to the sufficiency of evidence to support a factual finding necessary for a victim restitution order. Sentencing judges are given virtually unlimited discretion as to the kind of information they can consider and the source from whence it comes because a hearing to establish the amount of restitution does not require the formalities of other phases of a criminal prosecution. The court may use any rational method of fixing the amount of restitution as long as it is reasonably calculated to make the victim whole. It may make a restitution order based on truncated evidence such as declarations or probation reports, business records, and checks.

Authority:

People v. Giordano (2007) 42 Cal.4th 644, 663

People v. Jessee (2013) 222 Cal.App.4th 501, 507

People v. Hove (1999) 76 Cal.App.4th 1266, 1275

People v. Plains All American Pipeline L.P. (2024) 101 Cal.App.5th 872, 898-899

Fourth Holding:

The total restitution awarded to the victim includes two computational errors. The court erroneously included a $4,520 attorney fees bill twice and included $880 for an unknown reason. We will correct those errors.

Authority:

People v. Smith (2001) 24 Cal.4th 849, 854

Fifth Holding:

Section 136.2(i) authorizes a court to issue an order restraining a defendant for up to 10 years when the defendant has been convicted of a qualifying crime. Appellant’s conviction for assault with a deadly weapon under section 245 is not a qualifying crime under section 136(i). The court did not have statutory authority to issue the protective order, therefore, the order must be stricken.

Authority:

People v. Garcia (2022) 76 Cal.App.5th 887, 901

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

Case 000556

Posted on by Gary McCurdy

Error and/or relief

The court erred by imposing consecutive terms on counts 1 through 3 because the underlying offenses did not occur on separate occasions under Penal Code section 667.6(d), and the court did not make findings on whether it was exercising its discretion to impose a consecutive sentence. We reverse and remand for resentencing.

First Holding:

Section 669(a) provides that when a person is convicted of two or more crimes, the trial court must determine whether the terms of imprisonment shall run concurrently or consecutively. For certain sex offenses the Penal Code establishes alternative sentencing frameworks, including section 667.6.

Authority:

People v. Catarino (2023) 14 Cal.5th 748, 752

Second Holding:

Under section 667.6(c), a full, separate, and consecutive term may be imposed for each violation of an offense specified in subdivision (e) if the crimes involve the same victim on the same occasion. Section 667.6(d)(1) provides a full, separate, and consecutive term shall be imposed for each violation of an offense specified in subdivision (e) if the crimes involve separate victims or involve the same victim on separate occasions. Although section 269 is not listed in section 667.6(e), section 269(c) provides that the court shall impose a consecutive sentence for each offense that results in a conviction on this section if the crimes involve the same victim on separate occasions as defined in section 667.6(d).

Authority:

PEN 667.6(c)

PEN 667.6(d)

PEN 269

Third Holding:

The One Strike law in section 667.61 provides an alternative sentencing scheme for certain forcible sex offenses and mandates an indeterminate sentence of 15 or 25 years to life in prison when the jury has convicted the defendant of a specified felony sex crime and has also found certain factual allegations to be true.

Authority:

People v. Carbajal (2013) 56 Cal.4th 521, 534

Fourth Holding:

In determining whether crimes against a single victim were committed on separate occasions under section 667.6(d), the court shall consider whether, between the commission of one sex crime and another, the defendant had a reasonable opportunity to reflect upon the defendant’s actions and nevertheless resumed sexually assaultive behavior. Neither the duration of time between crimes, nor whether or not the defendant lost or abandoned the opportunity to attack, shall be, in and of itself, determinative on the issue of whether the crimes in question occurred on separate occasions.

Further, a finding that a defendant committed sex crimes on separate occasions does not require there be a break of any specific duration or any change in physical location. In applying this standard, courts have held the offenses of placing a finger in the victim’s private area, kissing her private area and then placing his private part in her private area were but a single occasion. In contrast, where the offenses are interrupted by the defendant’s nonsexual activity, courts have found they occur on a separate occasion.

Authority:

PEN 667.6(d)(2)

People v. Jones (2001) 25 Cal.4th 98, 104

People v. King (2010) 183 Cal.App.4th 1281, 1325

People v. Dearborne (2019) 34 Cal.App.5th 250, 265-266

People v. Corona (1988) 206 Cal.App.3d 13, 15-16, 17-18

Fifth Holding:

Defendants are entitled to sentencing decisions made in the exercise of the informed discretion of the sentencing court. A court that is unaware of the scope of its discretionary powers can no more exercise that informed discretion than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant’s record. In such circumstances, we have held that the appropriate remedy is to remand for resentencing unless the record clearly indicates that the trial court would have reached the same conclusion even if it had been aware that it had such discretion.

Authority:

People v. Salazar (2023) 15 Cal.5th 416, 419, 424

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

Sixth Holding:

The trial court was aware of its discretion. The general rule is that a trial court is presumed to have been aware of and followed the applicable law.

Authority:

People v. Shiga (2016) 6 Cal.App.5th 22, 40

People v. Brown (2007) 147 Cal.App.4th 1213, 1229

Seventh Holding:

When a trial court imposes consecutive sentences based on a finding under section 667.6(d), we may reverse only if there is no substantial evidence that the offenses were committed on separate occasions, that is, only if no reasonable trier of fact could have decided the defendant had a reasonable opportunity for reflection after completing an offense before resuming his assaultive behavior.

Authority:

People v. King (2010) 183 Cal.App.4th 1281, 1325

People v. Garza (2003) 107 Cal.App.4th 1081, 1092

Eighth Holding:

Regardless of whether section 667.6(c), applies to sentencing for a one strike offense under section 667.61 (which is not clear), under section 669, a trial court has discretion to impose concurrent or consecutive sentences when a defendant is convicted of multiple crimes with indeterminate sentences.

Authority:

PEN 669(a)

People v. Midell (2025) 113 Cal.App.5th 1060, 1085

People v. Rodriguez (2005) 130 Cal.App.4th 1257, 1262

Ninth Holding:

It is well settled that in making sentencing choices pursuant to section 667.6(c), the trial court must state a reason for imposing a consecutive sentence in deciding whether to impose a consecutive or concurrent sentence.

Authority:

People v. Osband (1996) 13 Cal.4th 622, 729