Tag Archives: Discretion

Amelioration, Discretion, Sentencing

Case: 000472

Posted on by Gary McCurdy

Error and/or relief

On this appeal from the defendant’s resentencing under section 1172.75, the matter is remanded for the court to exercise its discretion on whether to resentence the defendant under the Three Strikes Reform Act of 2012.

First Holding:

Under the Three Strikes law as originally enacted in 1994, an individual convicted of a felony offense following two prior convictions for serious or violent felonies was subject to an indeterminate term of life imprisonment with a minimum term of no less than 25 years. The Three Strikes Reform Act of 2012 lessened the prescribed sentence for a third strike defendant whose current offense was not a serious or violent felony. It included a retrospective provision – section 1172.126 – that provides relief to prisoners already serving third strike sentences where the third strike was not a serious or violent felony.

Authority:

People v. Conley (2016) 63 Cal.4th 646, 651, 652

People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1292

Second Holding:

In 2021, the Legislature enacted section 1172.75 that invalidates certain sentencing enhancements and requires courts to recall sentences with those enhancements and resentence them by applying any changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and promote uniformity of sentencing

Authority:

PEN 1172.75

Third Holding:

The Reform Act applies at a section 1172.75 resentencing if section 1170.126’s substantive requirements are satisfied, including the following: (1) the defendant is eligible under the Reform Act; and (2) the trial court does not determine that resentencing the defendant would pose an unreasonable risk of danger to public safety. Eligibility for resentencing must be decided on a count-by-count basis. A defendant is ineligible under the Reform Act if he was armed with a firearm during the offense for which the third strike sentence was imposed.

As to the public safety component, the People must prove the facts upon which the determination is based by a preponderance of the evidence. Relevant factors include: (1) the defendant’s criminal conviction history, including the type of crimes committed, the extent of injury to victims, the length of prior prison commitments, the remoteness of the crimes; (2) the defendant’s disciplinary record and record of rehabilitation while incarcerated; and (3) any other evidence the court, within its discretion, determines to be relevant in deciding whether a new sentence would result in an unreasonable risk of danger to public safety.

Authority:

PEN 1170.126

People v. Superior Court (Guevara) (2025) 18 Cal.5th 838, 850, 852, 878

People v. Johnson (2015) 61 Cal.4th 674, 688

People v. Estrada (2017) 3 Cal.5th 661, 669

Fourth Holding:

Defendants are entitled to sentencing decisions made in the exercise of the informed discretion of the sentencing court. When a court is unaware of the scope of its discretionary powers, the appropriate remedy is to remand for resentencing unless the record clearly indicates that the trial court would have reached the same conclusion even if it had been aware that it had such discretion.

In applying the clearly indicates test, it is almost always speculative for a reviewing court to say what the sentencing court would have done if it had known the scope of its discretionary powers at the time of sentencing. Remand for resentencing is required unless the sentencing court (1) announced it was aware of forthcoming legislation and explained how it would exercise its discretion under that legislation or (2) made “the kind of definitive statements to clearly indicate it would not impose a lesser sentence under any circumstances.

Authority:

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

People v. Lynch (2024) 16 Cal.5th 730, 776

Fifth Holding:

The trial court’s focus on defendant’s public safety risk was under Romero and section 1385(c). Those standards do not cover the section 1170.126(g) standard for purposes of satisfying the clearly indicates test. Under section 1385(c), the court has discretion to dismiss an enhancement unless there is a likelihood that the dismissal of the enhancement would result in physical injury or other serious danger to others.

This likelihood standard is not equivalent to or inclusive of the unreasonable risk of danger to public safety standard described in section 1170.126 for purposes of the clearly indicates test. And in denying the defendant’s request to dismiss his prior strikes under Romero, the trial court operated under a circumscribed power to depart from the sentencing norm established by the Three Strikes law. The circumstances had to be extraordinary for defendant to be deemed to fall outside the spirit of that law.

Authority:

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

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

People v. Buford (2016) 4 Cal.App.5th 886, 902-903

People v. Carmony (2004) 33 Cal.4th 367, 378

People v. Mayfield (2020) 50 Cal.App.5th 1096, 1105

Sixth Holding:

On remand, the trial court may consider the entire sentencing scheme given the inherently integrated nature of felony sentencing for a multiple-count conviction.

Authority:

People v. Burbine (2003) 106 Cal.App.4th 1250, 1257-1258

People v. Valenzuela (2019) 7 Cal.5th 415, 424-425 [the full resentencing rule allows a court to revisit all prior sentencing decisions when resentencing a defendant]

Discretion, Elements of crime, Standard of review, Sufficiency of and substantial evidence

Case 000468

Posted on by Gary McCurdy

Error and/or relief

The trial court applied an incorrect legal standard in ruling on the defendant’s petition for mental health diversion, and substantial evidence does not support its ineligibility finding. The court also erred by accepting a guilty to plea to conduct that is not criminal. We reverse defendant’s possession of marijuana conviction, conditionally vacate the remainder of defendant’s guilty pleas, conditionally reverse the judgment, and remand the matter for further proceedings consistent with section 1001.36 and this opinion.

First Holding:

Section 1001.36 authorizes pretrial diversion for criminal defendants suffering from certain recognized mental disorders. To qualify, criminal defendants must show they are both eligible and suitable for the program. A defendant accused of a qualifying offense is eligible for mental health diversion if, within the last five years, a qualified mental health expert has diagnosed the defendant with a qualifying mental health disorder that was a significant factor in the commission of the charged offense.

A qualifying diagnosis creates a rebuttable presumption that the disorder was a significant factor in the commission of the offense, which may only be overcome if there is clear and convincing evidence that the disorder was not a motivating factor, casual factor, or contributing factor to the defendant’s involvement in the alleged offense. For purposes of the diversion statute, a qualified mental health expert includes, but is not limited to, a psychiatrist, psychologist, or a person whose knowledge, skill, experience, training, or education qualifies them as an expert. The statute’s plain language does not limit a qualified mental health expert to a psychiatrist, psychologist, or other medical doctor.

Authority:

PEN 1001.36(b), (f)

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

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

People v. Gonzalez (2017) 2 Cal.5th 1138, 1141 [appellate court interprets a statute to effectuate the law’s purpose, applying a plain and commonsense meaning to the statute’s text]

Second Holding:

A substance use disorder registered counselor must complete hundreds of hours of classroom education and supervised training regarding addiction counseling, at least over 2,000 hours of work providing counseling services in an alcohol or drug program, and must pass an examination confirming their skill and ability. Under these circumstances, a substance abuse disorder registered counselor possesses the knowledge, skill, experience, training and education to make a substance use disorder diagnosis under the statute.

Authority:

Cal. Code Regs., tit. 9, sec. 13040(a)-(d)

Third Holding:

Where there has been a qualifying diagnosis, it is the People’s burden to overcome by clear and convincing evidence the statutory presumption that the disorder was a significant factor in the commission of the offense. Here, the People did not present any evidence to support a finding that defendant’s substance use disorders were not a motivating, causal, or contributing factor to his commission of the charged drug and firearm possession offenses. Argument by counsel is not evidence in the case and cannot be relied upon to support the trial court’s order.

Despite the lack of evidence, the trial court ruled, based on “common sense,” that possession for sale offenses like defendant’s could not be causally connected to a substance use disorder and that the Legislature could not have intended section 1001.36 to apply to possession of narcotics for sale cases because a vast majority of the felony cases before the court involved drugs. In essence, the trial court carved out a wholesale exception to mental health diversion for possession for sale offenses that does not appear in the plain text of the statute. This was error. It is a corollary to fundamental principles of separation of powers that courts must apply the statutes as written unless doing so would yield absurd results.

Authority:

People v. Harlow (2025) 113 Cal.App.5th 485, 491

Fourth Holding:

The absence of evidence showing defendant’s mental disorder was a factor in the commission of the offenses cannot satisfy the People’s burden to rebut the statutory presumption by clear and convincing evidence.

Authority:

Lacour v. Superior Court (2025) 110 Cal.App.5th 391,404 [the absence of evidence proving that a petitioner’s mental disorder was a factor in the commission of the offenses is not substantial evidence supporting a finding by clear and convincing evidence that the petitioner’s mental disorder was not a factor in the commission of the offenses]

Gomez v. Superior Court (2025) 113 Cal.App.5th 671, 687-689 [By finding the statutory presumption had been overcome by the lack of indication in the police reports that the defendant was suffering from the mental disorder at the time of a robbery, the trial court improperly shifted the burden to the defendant to affirmatively prove that her mental disorder contributed to the offense.]

Fifth Holding:

We review a trial court’s order denying mental health diversion for abuse of discretion and its factual findings for substantial evidence. When reviewing a finding that a fact has been proved by clear and convincing evidence, the question before the appellate court is whether the record as a whole contains substantial evidence from which a reasonable fact finder could have found it highly probable that the fact was true. 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. We presume a trial court’s order is correct and indulge all intendments and reasonable inferences to support it. Absent evidence to the contrary, we presume a trial court knew and applied the law.

Authority:

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

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

People v. Giordano (2007) 42 Cal.4th 644, 666

People v. Ramirez (2021) 10 Cal.5th 983, 1042

Sixth Holding:

It was error for the court to accept the defendant’s guilty plea to an act that was not criminal. The information alleged that he was in possession of not more than 28.5 grams of marijuana. Possession of marijuana is not criminal unless it is of more than 28.5 grams. By accepting defendant’s guilty plea to conduct that is not criminal, and sentencing him for that offense, the trial court exceeded its jurisdiction. Accordingly, we shall modify the judgment to vacate defendant’s conviction and sentence on that count.

Authority:

People v. Mutch (1971) 4 Cal.3d 389, 395-396, 399 [conviction for conduct not prohibited by statute is void]

People v. Soriano (1992) 4 Cal.App.4th 781, 784-785 [the defendant could not have been guilty of violating Penal Code section 115 by attempting to file a forged instrument because, as a matter of law, the writing he was charged with and admitted forging, a death certificate, is not an instrument within the meaning of section 115]

Appellate Principles, Discretion, Sixth Amendment, Standard of review

Case 000462

Posted on by Gary McCurdy

Error and/or relief

The trial court prejudicially violated the Confrontation Clause (U.S. const., amend. VI) by overly restricting defendant’s cross-examination of two sheriff’s deputies, whose testimony was the only prosecution evidence presented on counts 2 and 4. And although our reversal on counts 2 and 4 likewise moots defendant’s Pitchess request, we exercise our discretion to address the issue and find that the trial court should have ordered the production of two civilian complaints.

Given this disposition, we need not address defendant’s claim that the abstract of judgment is incorrect, since the trial court must enter a new judgment on remand. Defendant’s sentence is therefore vacated. On remand, if the People do not timely retry defendant on counts 2 and 4, the trial court shall resentence him on counts 1, 3, and 5 accordingly. If the People timely retry defendant on counts 2 and 4, the trial court is directed to disclose the Pitchess records consistent with this opinion and afford defendant a reasonable opportunity to investigate the disclosed material before retrial.

First Holding:

Defendants have a Sixth Amendment right to cross-examine witnesses. But they have a right only to reasonable cross-examination. Trial courts therefore have wide discretion in determining the appropriate scope of cross-examination.

Authority:

People v. Royal (2019) 43 Cal.App.5th 121, 149

Olden v. Kentucky (1988) 488 U.S. 227, 231

People v. Gonzalez (2021) 12 Cal.5th 367, 406

Second Holding:

Although trial courts may reasonably limit a defendant’s cross-examination of a witness’s bias, the Sixth Amendment’s Confrontation Clause restricts the court’s discretion. A criminal defendant states a violation of the Confrontation Clause by showing that he was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness, and thereby to expose to the jury the facts from which jurors could appropriately draw inferences relating to the reliability of the witness.

The trial court’s restrictions on a defendant’s cross-examination of a witness for bias does not violate the Sixth Amendment unless the defendant shows that a reasonable jury might have received a significantly different impression of the witness had the defendant been permitted to pursue his proposed line of cross-examination. However, excluding evidence of marginal impeachment value generally does not violate the Confrontation Clause.

Authority:

People v. Pearson (2013) 56 Cal.4th 393, 455-456

Delaware v. Van Arsdall (1986) 475 U.S. 673, 680

People v. Quartermain (1997) 16 Cal.4th 600, 623

People v. Castaneda-Prado (2023) 94 Cal.App.5th 1260, 1282

Third Holding:

We review the trial court’s order restricting defendant’s cross-examination of the deputies for an abuse of discretion. We likewise review the trial court’s denial of defendant’s motion for a new trial for an abuse of discretion.

Authority:

People v. Peoples (2016) 62 Cal.4th 718, 765

People v. Hoyt (2020) 8 Cal.5th 892, 957

Fourth Holding:

The tactical decision (which was defendant’s to make) has no bearing on whether the trial court properly limited defendant’s cross-examination of the deputies. The issue is whether defendant had a reasonable opportunity to cross-examine the deputies’ potential bias, not whether that cross-examination might benefit the prosecution.

Authority:

Delaware v. Van Arsdall (1986) 475 U.S. 673, 678-679

Fifth Holding:

That defendant could have asked other witnesses about the 2015 incident to attack the deputies’ credibility is beside the point. Defendant had a Sixth Amendment right to reasonably probe the deputies’ credibility by cross-examining the deputies. The issue here is, again, whether the trial court’s limitation on defendant’s cross-examination of the deputies violated the Confrontation Clause, not whether defendant had other available means to explore the deputies’ bias beyond cross-examining them.

Authority:

People v. Smith (2007) 40 Cal.4th 483, 513 [Confrontation Clause allows appropriate cross-examination designed to show a prototypical form of bias on the part of the witness]

People v. Quartermain (1997) 16 Cal.4th 600, 623 [The right of confrontation includes the right to cross-examine adverse witnesses on matters reflecting on their credibility]

Sixth Holding:

The testimony of the deputies was effectively the only evidence presented on the assault on an officer and felony evading charges, since they were the only witnesses to those offenses. Evidence about the deputies’ knowledge of the earlier incident was thus not of marginal impeachment value, nor was it not relevant, as the trial court incorrectly concluded. This was the only evidence that showed the deputies might have been biased against defendant, despite their denials, and could have influenced the jury’s view of their testimony.

Given that defendant’s guilt on the two counts hinged on the deputies’ testimony, their credibility was a critical issue on those counts. The trial court’s ruling allowed defendant to ask the deputies only whether they knew defendant and whether they were biased against him. When both deputies said they were not biased against him, defendant could not then probe any potential bias stemming from the 2015 incident, even though the jury might have reasonably found that the incident gave the deputies a motive for favoring the prosecution. In our view, the trial court’s ruling made defendant’s cross-examination of the deputies an exercise in futility.

Authority:

United States v. Abel (1984) 469 U.S. 45, 52 [Proof of bias is almost always relevant because the jury, as finder of fact and weigher of credibility, has historically been entitled to assess all evidence which might bear on the accuracy and truth of a witness’ testimony]

People v. Castaneda-Prado (2023) 94 Cal.App.5th 1260, 1280-1282[Bias has traditionally been viewed as especially powerful.]

Abatti v. Superior Court (2003) 112 Cal.App.4th 39, 52 [Impeachment of a witness can make the difference between acquittal and conviction, especially where credibility is the major issue in a case and evidence at trial will consist of opposing stories presented by the defense and the prosecution witnesses.]

Delaware v. Van Arsdall (1986) 475 U.S. 673, 679 [“blanket” ruling prohibiting all inquiry into a witness’s potential bias violated Confrontation Clause]

Seventh Holding:

The second step of the analysis asks whether a reasonable jury might have received a significantly different impression of the challenged witness’s credibility if the proposed line of cross-examination had been permitted. This requires us to focus on the witness’s cross-examination rather than the outcome of the trial as a whole, examining whether the defense had other means of impeachment of the witness during cross-examination. We review the issue de novo.

Authority:

People v. Castaneda-Prado (2023) 94 Cal.App.5th 1260, 1282

Eighth Holding:

In Davis, the United States Supreme Court reasoned: “While counsel was permitted to ask [the witness] whether he was biased, counsel was unable to make a record from which to argue why the witness might have been biased or otherwise lacked that degree of impartiality expected of a witness at trial. On the basis of the limited cross-examination that was permitted, the jury might well have thought that defense counsel was engaged in a speculative and baseless line of attack on the credibility of an apparently blameless witness.”

So too here. Because we conclude the trial court’s ruling violated defendant’s Confrontation Clause right to cross-examine the deputies, we must reverse the convictions on counts 2 and 4 unless the People show the error was harmless beyond a reasonable doubt. The People have not done so.

Authority:

Davis v. Alaska (1974) 415 U.S. 308, 317-318

Delaware v. Van Arsdall (1986) 475 U.S. 673, 684

Ninth Holding:

A review of the Pitchess materials reveals that complaints had previously been filed against the deputies. Those materials should have been released to the defendant. The fact that the complaints were found by the internal police investigation to be unfounded is immaterial because unsustained complaints are discoverable. This is because “the burden for preparing a criminal defendant’s case rests with his counsel, not with the police department. That burden cannot be properly discharged unless counsel has direct access to potential witnesses, for it is counsel who must decide if they can aid his client, not the police department’s internal affairs division, however sincere and well motivated the latter may be.

Authority:

Pitchess v. Superior Court (1974) 11 Cal.3d 531

People v. Gaines (2009) 46 Cal.4th 172, 182

People v. Zamora (1980) 28 Cal.3d 88, 93 fn. 1, 101

Kelvin L. v. Superior Court (1976) 62 Cal.App.3d 823, 829

Amelioration, Discretion, Sentencing

Case 000460

Posted on by Gary McCurdy

Error and/or relief

The matter is remanded for resentencing under section 1172.75 with directions that the court determine whether reduction of his Three Strikes sentence under the Three Strikes Reform Act of 2012 is appropriate.

First Holding:

Generally, a trial court’s discretionary decision whether to dismiss or strike a sentencing allegation or enhancement is reviewed for an abuse of discretion. The burden is on the party attacking the sentence to clearly show the sentencing decision was irrational or arbitrary. However, a trial court’s discretion must be guided and controlled by fixed legal principles and exercised in conformity with the spirit of the law. A trial court abuses its discretion when it applies the wrong legal standards applicable to the issue at hand.

Additionally, an erroneous understanding by the trial court of its discretionary power is not a true exercise of discretion. Defendants are entitled to sentencing decisions made in the exercise of the informed discretion” of the sentencing court. A trial court that misunderstands the scope of its sentencing discretion cannot be said to have properly exercised that discretion. In such circumstances, the appropriate remedy is to remand for resentencing unless the record clearly indicates the court would have reached the same conclusion even if it had been aware that it had such discretion.

Authority:

People v. Carmony (2004) 33 Cal.4th 367, 373, 376

People v. Williams (1998) 17 Cal.4th 148, 159

People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977

Paterno v. State of California (1999) 74 Cal.App.4th 68, 85

People v. Marquez (1983) 143 Cal.App.3d 797, 803

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

People v. Belmontes (1983) 34 Cal.3d 335, 348, fn. 8

Second Holding:

Under the original Three Strikes law, a defendant with two or more prior serious or violent felony convictions would be sentenced to a life term for a current felony conviction even if the current conviction was not a serious or violent felony.

In 2012, the Reform Act was enacted under Proposition 36, amending the law to reduce the punishment prescribed for certain Three Strikes offenders. Under the Reform Act, a defendant with two or more prior serious or violent felony convictions, whose current conviction is for a nonserious or nonviolent felony, receives a doubled sentence rather than a life sentence, unless certain disqualifying factors were proven. If the petitioner satisfied the criteria for resentencing, the petitioner was resentenced as a second strike offender with a doubled term, unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety.

Authority:

PEN 1170.126

People v. Conley (2016) 63 Cal.4th 646, 651

Third Holding:

Effective January 1, 2020, SB 136 (2019–2020 Reg. Sess.) amended section 667.5 by limiting the prior prison term enhancement to prior terms for sexually violent offenses. Effective January 1, 2022, SB 483 codified section 1172.75, which set forth the resentencing procedure, and applied retroactively to persons currently serving a term for a judgment that includes such prison priors. Where a now invalid enhancement was imposed, the court shall recall the sentence and resentence the defendant. The statute directs that the resentencing court shall 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.

Authority:

PEN 1172.75

PEN 667.5(b)

People v. Superior Court (Guevara) (2025) 18 Cal.5th 838, 852

Fourth Holding:

Permitting recall and resentencing of indeterminate sentences in a section 1172.75 hearing does not unconstitutionally amend section 1170.126. First, section 1170.126(k) permits resentencing of defendants subject to section 1170.126 by some alternative means and is, therefore, not the exclusive remedy for nonserious, nonviolent Three Strikes offenders. Under section 1170.126(k) defendants entitled to seek relief under section 1170.126 may access rights or remedies otherwise available. Permitting recall and resentencing of Three Strikes indeterminate sentences under section 1172.75 does not unconstitutionally amend section 1170.126 but rather, incorporates the public safety determination requirements of section 1170.126 into the resentencing process.

When a Three Strikes defendant is resentenced under section 1172.75, the trial court must determine whether resentencing them on their Three Strikes sentences under the revised penalty provisions of the Reform Act would pose an unreasonable risk of danger to public safety. Accordingly, we must remand the case to the trial court for its determination on whether resentencing defendant under the revised penalty provisions of the Reform Act would pose an unreasonable risk of danger to public safety. If so, the court shall reimpose the indeterminate term. If defendant does not, and he is otherwise eligible under the Reform Act, the court shall resentence the defendant under the revised provisions of the Reform Act.

Authority:

People v. Superior Court (Guevara) (2025) 18 Cal.5th 838, 855, 858-861, 863, 869, 878

Appellate Principles, Discretion, Duty of the court, Fines and fees, Probation Parole PRCS, Sentencing, Standard of review

Case 000454

Posted on by Gary McCurdy

Error and/or relief

Though we find that a condition of probation that requires the defendant participate and complete any counseling, rehabilitation, or treatment program deemed appropriate by the probation officer was not an improper delegation of the court’s authority under the separation of powers doctrine, it was improper to impose as a condition of probation that the defendant participate at his own expense.

The challenged probation condition should be modified to delete the portion of the condition requiring defendant to be responsible for the payment of the costs/fees of any counseling or rehabilitation/treatment program. The court is directed to issue a separate order for the payment of such costs and fees. Before the court may order defendant to pay any or all costs associated with his probation, it must make an inquiry and determination as to his ability to pay and determine the amount of payment.

First Holding:

A trial court may order a defendant to pay for reasonable costs of probation; however, such costs are collateral and their payment cannot be made a condition of probation. Instead, the court must issue a separate order for the payment of such costs. Moreover, before ordering a defendant to pay costs of probation, the court must make an inquiry and determination of the defendant’s ability to pay and the amount of payment.

Authority:

PEN 1203.1b(a)

Brown v. Superior Court (2002) 101 Cal.App.4th 313, 321-322

Second Holding:

Though we find there was no improper delegation, the defendant’s claim that the condition of probation is an improper delegation of the court’s authority under the separation of powers doctrine has not been forfeited for lack of objection, because it raises a pure question of law.

Authority:

In re Sheena K. (2007) 40 Cal.4th 875, 888

People v. Mendez (2013) 221 Cal.App.4th 1167, 1172

Third Holding:

A trial court has broad discretion to impose probation conditions to foster rehabilitation of the defendant and to protect the public. Further, the court has authority to empower the probation department with authority to supervise the probation conditions. We review a constitutional challenge to a probation condition de novo.

Authority:

PEN 1203.1(j)

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

People v. Kwizera (2000) 78 Cal.App.4th 1238, 1240

In re Shaun R. (2010) 188 Cal.App.4th 1129, 1143

Fourth Holding:

A trial court is governed by the separation of powers doctrine. The powers of state government are legislative, executive, and judicial. Persons charged with the exercise of one power may not exercise either of the others except as permitted by this Constitution. Although the separation of powers doctrine does not prohibit one branch from taking action that might affect another, the doctrine is violated when the actions of one branch defeat or materially impair the inherent functions of another. Separation of powers does not mean an entire or complete separation of powers or functions, which would be impracticable, if not impossible.

Authority:

Cal. Const., art. III, sec. 3

In re D.N. (2022) 14 Cal.5th 202, 212

Fifth Holding:

By leaving key determinations to be decided ad hoc, a vague probation condition may result in an impermissible delegation of authority to the probation officer. Under the separation of powers doctrine, judicial powers may not be delegated to nonjudicial officers. While the probation officer may properly specify the details necessary to effectuate the court’s probation conditions, it is the court’s duty to determine the nature of the requirements imposed on the probationer. The court may leave to the discretion of the probation officer the specification of the many details that invariably are necessary to implement the terms of probation. However, the court’s order cannot be entirely open-ended.

Authority:

People v. Smith (2022) 79 Cal.App.5th 897, 902

People v. O’Neil (2008) 165 Cal.App.4th 1351, 1358-1359

Sixth Holding:

A probation condition directing that a defendant participate in any treatment program when considering another condition requiring a defendant complete a drug and alcohol assessment and follow through with treatment as prescribed by the probation officer, passes constitutional muster. This is particularly true where the court’s oral comments reflect that the defendant needs treatment for a substance abuse problem. However, where the condition includes the possibility of participation in a residential treatment program, as directed by the probation officer, it is an improper delegation of judicial authority.

Authority:

People v. Smith (2022) 79 Cal.App.5th 897, 902-903

People v. Cruz (2011) 197 Cal.App.4th 1306, 1310 [Invalidating probation condition that gave the probation officer sole discretion to decide whether the defendant should be subject to GPS monitoring.]

People v. O’Neil (2008) 165 Cal.App.4th 1351, 1355, 1359 [Invalidating condition that provided, “You shall not associate socially, nor be present at any time, at any place, public or private, with any person, as designated by your probation officer.”]

People v. Kwizera (2000) 78 Cal.App.4th 1238,-1241 [Upholding probation condition that directed defendant to “follow such course of conduct as the probation officer may prescribe”]

People v. Penoli (1996) 46 Cal.App.4th 298, 307 [Upholding condition that probation officer may unilaterally select a residential drug rehabilitation program and determine whether defendant successfully completed that program.]

Seventh Holding:

A probation condition should be given the meaning that would appear to a reasonable, objective reader. Following that precept, we read the challenged provision here not as delegating adjudicatory powers to the probation officer but as indicating the court’s advance approval of an agreement that the probation officer might reach with defendant. If a probation officer does interpret the condition in an arbitrary manner, defendant may then file a petition for modification of his probation condition. Thus, the probation condition did not improperly delegate judicial authority to the probation officer.

Authority:

PEN 1203.2(b)(1)

PEN 1203.3

In re D.N. (2022) 14 Cal.5th 202, 211

People v. Olguin (2008) 45 Cal.4th 375, 382

People v. Keele (1986) 178 Cal.App.3d 701, 708 [trial court retains jurisdiction to review probation officer’s actions]

People v. Arevalo (2018) 19 Cal.App.5th 652, 658 [If probation officer interprets probation condition in an arbitrary way, the defendant can file a petition for modification of his probation condition.]

Appellate Principles, Discretion, Duty of the court, Sentencing, Standard of review

Case 000448

Posted on by Gary McCurdy

Error and/or relief

The defendant contends that it was error to proceed to sentencing in the absence of the attorney she retained after counsel was appointed, and that the court abused its discretion when it found that her youth was not a contributing fact. Retained counsel did file a document titled “Limited Scope Substitution of Counsel.” Thereafter, appointed counsel filed a resentencing brief on the defendant’s behalf. The retained attorney did not. At the resentencing hearing, appointed counsel appeared with the defendant. The retained attorney did not appear. We affirm, but the trial court must recalculate the credit for time served.

First Holding:

The trial court did not recalculate the defendant’s custody credits and ordered the California Department of Corrections and Rehabilitation to do the calculation. A trial court must calculate a defendant’s custody credits when resentencing.

Authority:

PEN 2900.1

People v. Buckhalter (2001) 26 Cal.4th 20, 37 [when a trial court resentences a defendant on remand, it must credit him with all actual days he spent in custody, whether in jail or prison, up to that time]

Second Holding:

We review the defendants’s contentions regarding counsel of choice and selection of sentence term under the deferential abuse of discretion standard. A defendant who desires to retain his own counsel is required to act with diligence and may not demand a continuance if he is unjustifiably dilatory or if he arbitrarily desires to substitute counsel at the time of trial.

Authority:

People v. O’Malley (2016) 62 Cal.4th 944, 1004 [trial court has discretion to deny substitution of counsel where it would prejudice the defendant or disrupt the orderly processes of justice]

People v. Blake (1980) 105 Cal.App.3d 619, 623-624

People v. Partida (2005) 37 Cal.4th 428, 435 [appellate review of asserted evidentiary error forfeited where defendant failed to make a timely, specific objection]

Third Holding:

Section 1170(b)(6) does not mandate a presumption in favor of the lower term in every case in which the defendant was under age 26 at the time the crime was committed. Instead, the presumption applies only if the defendant’s youth was a contributing factor in his or her commission of the offense.

Authority:

PEN 1170(b)(6)

People v. Fredrickson (2023) 90 Cal.App.5th 984, 991-992

People v. Carmony (2004) 33 Cal.4th 367, 376-377 [trial court’s sentencing choices reviewed for abuse of discretion]

Fourth Holding:

At oral argument, the defendant contended that the trial court erred in conducting the resentencing hearing without her physical presence. But the defendant failed to raise this contention in her opening brief. Thus, it is forfeited. Forfeiture aside, any error would have been harmless beyond a reasonable doubt based on the record before us.

Authority:

People v. Stanley (1995) 10 Cal.4th 764, 793 [Every brief should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration]

People v. Duff (2014) 58 Cal.4th 527, 550, fn. 9 [claims not raised in the opening brief are waived]

People v. Velasco (2023) 97 Cal.App.5th 663, 674

People v. Cutting (2019) 42 Cal.App.5th 344, 348

Discretion, Duty of the court, Sentencing

Case 000446

Posted on by Gary McCurdy

Error and/or relief

Though affirming the lower court’s decision to not exercise its discretion to dismiss the prior serious felony enhancement, there was an error in the calculation of credit for time served.

First Holding:

A trial court’s refusal to dismiss a prior serious felony enhancement is reviewed on appeal under the deferential abuse of discretion standard.

Authority:

People v. Carmony (2004) 33 Cal.4th 367, 373

People v. Mendoza (2023) 88 Cal.App.5th 287, 298

People v. Hodge (2024) 107 Cal.App.5th 985

Second Holding:

When a trial court declines to strike a five-year sentencing enhancement for a serious prior felony conviction, no error occurs if the trial court evaluates all relevant circumstances to ensure that punishment fits the offense and the offender.

Authority:

People v. Shaw (2020) 56 Cal.App.5th 582, 587

Third Holding:

A trial court will only abuse its discretion in failing to strike a prior felony conviction allegation in limited circumstances. For example, an abuse of discretion occurs where the trial court was not aware of its discretion to dismiss or where the court considered impermissible factors in declining to dismiss,’ or where the sentencing norms established by the Three Strikes law may, as a matter of law, produce an arbitrary, capricious or patently absurd result under the specific facts of a particular case.

But it is not enough to show that reasonable people might disagree about whether to strike one or more prior conviction allegations. A trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it. A merely debatable ruling cannot be deemed an abuse of discretion. Where the record demonstrates that the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, we shall affirm the trial court’s ruling.

Authority:

People v. Brugman (2021) 62 Cal.App.5th 608, 637

People v. Johnson (2022) 12 Cal.5th 544, 605

People v. Myers (1999) 69 Cal.App.4th 305, 310

Fourth Holding:

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. In other words, 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.

Authority:

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

People v. Bravo (2025) 107 Cal.App.5th 1144, 1157 [Section 1385(c) does not mean that, whenever a listed mitigating circumstance is present, the trial court must dismiss all enhancements unless it finds dismissal would endanger public safety]

Fifth Holding:

The trial court awarded the defendant the number of days of actual custody credit that reflected his credits from the date of his incarceration to the date of his original sentencing hearing, and ordered the California Department of Corrections and Rehabilitation (CDCR) to calculate credits for the time he has been incarcerated at CDCR. On resentencing, a trial court must calculate a defendant’s custody credits through the date of the resentencing.

Authority:

People v. Buckhalter (2001) 26 Cal.4th 20, 37 [when a trial court resentences a defendant on remand, it must credit him with all actual days he spent in custody, whether in jail or prison, up to that time]

Discretion, Sentencing

Case 000445

Posted on by Gary McCurdy

Error and/or relief

Convicted of both murder and conspiracy to commit that murder, the court should have stayed the sentence for the conspiracy under section 654.

First Holding:

Section 654(a) provides in pertinent part that an act or omission that is punishable in different ways by different provisions of law may be punished under either of such provisions, but in no case shall the act or omission be punished under more than one provision. The waiver doctrine does not apply to questions involving the applicability of section 654. Errors in the applicability of section 654 are corrected on appeal regardless of whether the point was raised by objection in the trial court or assigned as error on appeal.

Authority:

PEN 654

People v. Hester (2000) 22 Cal.4th 290, 295

Second Holding:

Section 654 precludes multiple punishments for a single act or indivisible course of conduct. Even concurrent sentences on convictions subject to section 654 are prohibited; the sentence on one of the two applicable convictions must be imposed and then stayed. The purpose of section 654 is to insure that a defendant’s punishment will be commensurate with his culpability.

Authority:

People v. Hester (2000) 22 Cal.4th 290, 294

People v. Deloza (1998) 18 Cal.4th 585, 591–592

People v. Latimer (1993) 5 Cal.4th 1203, 1211

Third Holding:

To determine the applicability of section 654, we first consider if the different crimes were completed by a single physical act. If so, the defendant may not be punished more than once for that act. Only if we conclude that the case involves more than a single act—i.e., a course of conduct—do we then consider whether that course of conduct reflects a single intent and objective or multiple intents and objectives.

Authority:

People v. Corpening (2016) 2 Cal.5th 307, 311

Fourth Holding:

If the convictions involve more than one act, the court reaches step two of the section 654 analysis: whether the course of conduct involved multiple intents and objectives. At step two, whether crimes arise from an indivisible course of conduct turns on the perpetrator’s intent and objective. If all of the crimes were merely incidental to, or were the means of accomplishing or facilitating one objective, a defendant may be punished only once. If, however, a defendant had several independent criminal objectives, he may be punished for each crime committed in pursuit of each objective, even though the crimes shared common acts or were parts of an otherwise indivisible course of conduct. Whether a defendant harbored a single intent—and thus a single objective—is a factual question; the applicability of section 654 to settled facts is a question of law.

Authority:

People v. Harrison (1989) 48 Cal.3d 321, 335

People v. Perry (2007) 154 Cal.App.4th 1521, 1525

Fifth Holding:

Because the conspiracy count in this case did not include a broader objective than the commission of the first degree murder, section 654 applied.

Authority:

People v. Dalton (2019) 7 Cal.5th 166, 247

People v. Lewis (2008) 43 Cal.4th 415, 439 [overruled on other grounds in People v. Black (2014) 58 Cal.4th 912, 919]

People v. Briones (2008) 167 Cal.App.4th 524, 529

People v. Hernandez (2003) 30 Cal.4th 835, 866 [disapproved on other grounds in People v. Riccardi (2012) 54 Cal.4th 758, 824, fn. 32]

People v. Ramirez (1987) 189 Cal.App.3d 603, 615–616

Sixth Holding:

We acknowledge the trial court’s discretion under section 654 to choose which punishment to stay. Nevertheless, we conclude that a remand is unnecessary because the trial court’s decision on which punishment to stay would make no difference to the total sentence for the defendant. In this case, the sentence for the first degree murder count and the conspiracy to commit murder count are the same, 25 years to life. Under these circumstances, we will correct the trial court’s error by modifying the defendant’s sentence to stay the punishment on count 2, the conspiracy to commit murder conviction and the attached enhancements, to comply with section 654.

Authority:

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

People v. Cortez (1998) 18 Cal.4th 1223, 1237
People v. Hernandez (2003) 30 Cal.4th 835, 870 [disapproved on other grounds in People v. Riccardi (2012) 54 Cal.4th 758, 824, fn. 32]

People v. Calles (2012) 209 Cal.App.4th 1200, 1221

People v. Bey (2025) 108 Cal.App.5th 144, 167

Discretion, Sentencing, Standard of review

Case: 000443

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in ordering restitution in the amount of the full retail price of sunglasses that were returned to the victim, a retail store, by the police soon after the theft.

First Holding:

In every case in which a victim has suffered economic loss as a result of the defendant’s conduct, the court shall require that the defendant make restitution to the victim or victims in an amount established by court order, based on the amount of loss claimed by the victim or victims or any other showing to the court.

Restitution shall be of a dollar amount that is sufficient to fully reimburse the victim or victims for every determined economic loss incurred as the result of the defendant’s criminal conduct, including, but not limited to, full or partial payment for the value of stolen or damaged property. The value of stolen or damaged property shall be the replacement cost of like property, or the actual cost of repairing the property when repair is possible. A victim may also seek lost profits.

Authority:

PEN 1202.4(f)

Second Holding:

A prima facie case for restitution can be made based on a victim’s testimony or other claim or statement of the amount of economic loss. Once a prima facie showing of loss has been made, the burden shifts to defendant to demonstrate that the amount of the loss is other than that claimed by the victim.

Authority:

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

Third Holding:

We review restitution orders for abuse of discretion. Where the specific issue is whether the court’s factual findings support restitution, we review those findings for substantial evidence.

Authority:

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

People v. Hume (2011) 196 Cal.App.4th 990, 995

People v. Trout-Lacy (2019) 43 Cal.App.5th 369, 373

Fourth Holding:

Ordering a defendant to pay retail value is justified when a retailer shows it lost the opportunity to sell the stolen goods to customers at that price — in other words, that it lost profits because of the thefts.

Authority:

People v. Chappelone (2010) 183 Cal.App.4th 1159, 1178 [retail value of recovered stolen property was not an appropriate measure of restitution when the prosecutor presented no evidence that the victim retailer lost any profits as a result of the theft]

Fifth Holding:

Had the victim been a person who purchased the sunglasses at a store for the retail price, the retail price may have been the accurate measure of damages.

But the victim retailer did not seek lost profits on its restitution request form or introduce evidence at the hearing supporting such a claim. The trial court, in fact, ordered defense counsel to refrain from examining the store manager about the store’s sales volume after the prosecutor objected on relevancy grounds. The restitution award was therefore limited to the replacement cost of like property.

Using retail value as the sole basis to calculate restitution, based on this record, resulted in a windfall to the victim retailer.

Authority:

PEN 1202.4(f)(3)(A)

People v. Chappelone (2010) 183 Cal.App.4th 1159, 1172 [A restitution order is intended to compensate the victim for its actual loss and is not intended to provide the victim with a windfall]

People v. Valle (2023) 93 Cal.App.5th 1329, 1333 [awarding purchase price of stolen cell phone that was returned to victim was error when defendant elicited testimony the victim hoped to use or sell the phone]

Discretion, Sentencing

Case: 000441

Posted on by Gary McCurdy

Error and/or relief

The gang conviction in count 6 is based on the same felonious conduct that comprises the murder conviction in count 1. Accordingly, the trial court was required to stay execution of one of these sentences. We vacate the defendant’s sentence and remand for resentencing. The trial court shall exercise its discretion under section 654 to determine which of the sentences for counts 1 and 6 must be stayed.

First Holding:

Section 654 prohibits multiple punishment for a single act or course of conduct that violates more than one statute. Where all offenses are incident to one objective, the defendant may be punished for only one of them, and execution of sentence on the remaining counts must be stayed.

Authority:

PEN 654(a)

People v. Correa (2012) 54 Cal.4th 331, 337

Second Holding:

Under amended section 654 (AB 518 (2021–2022 Reg. Sess.)) (Stats. 2021, ch. 441), the sentencing court has discretion to determine which sentence should be stayed. This could result in the trial court imposing and executing the shorter sentence rather than the longer one. Here, although the lower court’s decision to run the sentence in count 6 concurrently strongly suggests it would not stay the sentence for murder, nothing in the sentencing record affirmatively shows how the trial court would have exercised its discretion under section 654. Accordingly, we remand for resentencing so the trial court may determine which sentence must be stayed.

Authority:

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

Discretion, Sentencing, Standard of review

Case: 000434

Posted on by Gary McCurdy

Error and/or relief

At the hearing on resentencing pursuant to Penal Code section 1172.75, the trial court abused its discretion in denying the defendant a continuance to obtain documents from the California Department of Corrections (CDCR). We conclude that the error prejudiced defendant because the trial court lacked potential information relevant to exercising its discretion. Additionally, the record does not show that when it denied the requested continuance, the court understood the full scope of its discretion. We reverse the judgment and remand for a new resentencing hearing.

First Holding:

Section 1172.75(a) provides that any sentence enhancement that was imposed prior to January 1, 2020, under section 667.5(b), except for any enhancement imposed for a prior conviction for a sexually violent offense as defined in Welfare and Institutions Code section 6600(b)is legally invalid.

Section 1172.75(d)(3) provides that the court may consider postconviction factors, including, but not limited to, the disciplinary record and record of rehabilitation of the defendant while incarcerated, evidence that reflects whether age, time served, and diminished physical condition, if any, have reduced the defendant’s risk for future violence, and evidence that reflects that circumstances have changed since the original sentencing so that continued incarceration is no longer in the interest of justice. Where defendant’s original sentence included a now-invalid sentencing enhancement the resentencing court must provide a full resentencing hearing.

Authority:

PEN 1172.75

People v. Monroe (2022) 85 Cal.App.5th 393, 402

Second Holding:

We review a trial court’s denial of a continuance for abuse of discretion. In reviewing the decision to deny a continuance, one factor to consider is whether a continuance would be useful. Here, a continuance was merited because it would have allowed defense counsel to obtain potential evidence relevant to resentencing from the CDCR. The People did not oppose the requested continuance. The burden of a continuance was minimal because there would have been no need to reschedule witnesses or consider juror inconvenience.

We do not agree that the denial of a continuance was harmless. The record does not indicate the court understood the extent of its discretion when it denied the continuance. The court incorrectly stated that its only discretion was whether to strike the additional 25-to-life gun allegation, when in fact the court had discretion to reduce the 25-year-term to impose a lesser included enhancement.

Authority:

People v. Mungia (2008) 44 Cal.4th 1101, 1118

People v. Grajeda (2025) 111 Cal.App.5th 829, 839–840

People v. McDavid (2024) 15 Cal.5th 1015, 1020–1021, 1030 [trial court has discretion to strike enhancement and impose lesser included sec. 12022.53 enhancement or other lesser included enhancement]

Third Holding:

Section 1050(b) generally requires a written motion to request a continuance, but section 1050(c) states that, notwithstanding subdivision (b), a party may make a motion for a continuance without complying with the requirements of that subdivision, albeit absent a showing good cause, sanctions may be imposed.

Authority:

PEN 1050

Discretion, Sentencing

Case: 000429

Posted on by Gary McCurdy

Error and/or relief

An insurer is not a “direct victim” eligible for restitution under section 1202.4

First Holding:

We review a restitution order for abuse of discretion.

Authority:

People v. Percelle (2005) 126 Cal.App.4th 164, 179

Second Holding:

In every case in which a victim has suffered economic loss as a result of the defendant’s conduct, the court shall require that the defendant make restitution to the victim or victims in an amount established by court order, based on the amount of loss claimed by the victim or victims or any other showing to the court. Victim includes a corporation or any other legal or commercial entity when that entity is a direct victim of a crime. Thus, only the direct victim of a crime is entitled to restitution from the perpetrator of the offense.

Authority:

PEN 1202.4(f)

People v. Duong (2010) 180 Cal.App.4th 1533, 1537

Third Holding:

Direct victims include only the real and immediate objects of the defendant’s offenses Insurance companies that suffered the consequences of crime only by reimbursing the crime-related losses of their policyholders do not reasonably fit within this definition. As a result, restitution may not be awarded to insurers that partially reimbursed the direct victims for their losses, and trial courts may not divide the full amount of restitution between the victims and their insurers.

Authority:

People v. Birkett (1999) 21 Cal.4th 226, 233

Fourth Holding:

Accordingly, the trial court abused its discretion when it awarded restitution to the insurer. Instead, the court should have awarded the full restitution amount, including any amount awarded to the insurer, to the water district, which was the direct victim of the defendant’s crime, notwithstanding any reimbursement it already received from the insurer.

Authority:

People v. Duong (2010) 180 Cal.App.4th 1533, 1537[a restitution order resting upon a demonstrable error of law constitutes an abuse of the court’s discretion]

People v. Hove (1999) 76 Cal.App.4th 1266, 1272 [insurance payments to the victim do not allow the defendant to escape responsibility for the losses he caused]

Fifth Holding:

Because the defendant does not contest the amount of restitution or the water district’s entitlement to that amount on appeal, we vacate the insurer restitution order and remand the matter so the court can order full restitution to the correct victim under section 1202.4.

Authority:

People v. Duong (2010) 180 Cal.App.4th 1533, 1540 [remanding so the trial court can order restitution to the victim for the amount that the hospital will accept as full payment for the medical services the victim received at the hospital]