Tag Archives: Discretion

Amelioration, Appellate Principles, Discretion, Sentencing, Standard of review

Case 000906

Posted on by Gary McCurdy

Error and/or relief

At a resentencing hearing under section 1172.75, the trial court struck the one-year prior but otherwise declined to reduce the defendant’s sentence. The trial court did not apply the correct standard of law and therefore abused its discretion. We reverse the order.

First Holding:

SB 136 (2019–2020 Reg. Sess. amended section 667.5b) to allow courts to impose one-year prior prison term enhancements only for specified sexually violent offenses. Thereafter, SB 483 (2021–2022 Reg. Sess.) made the amendment retroactive to final cases and added what is now section 1172.75.

Section 1172.75 sets forth the process for recalling sentences and resentencing. If a judgment includes a qualifying enhancement, the trial court shall recall the sentence and resentence the defendant. Resentencing shall result in a lesser sentence than the one originally imposed inclusive of the enhancements unless the court finds by clear and convincing evidence that imposing a lesser sentence would endanger public safety.

At resentencing, 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.

Authority:

PEN 667.5(b)

PEN 1172.75

Second Holding:

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.

At a hearing under section 1172.75, the resentencing court shall 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(d)(2)

Third Holding:

As relevant here, SB 81 (2021–2022) effected a change in law by adding subdivision (c) to section 1385. That subdivision provides that, notwithstanding any other law, the court shall dismiss an enhancement if it is in the furtherance of justice to do so, except if dismissal of that enhancement is prohibited by any initiative statute. In exercising its discretion under this subdivision, the court shall consider and afford great weight to evidence offered by the defendant to prove that any of the mitigating circumstances in subparagraphs (A) to (I) are present.

Proof of the presence of one or more of these circumstances weighs greatly in favor of dismissing the enhancement, unless the court finds that dismissal of the enhancement would endanger public safety. ‘Endanger public safety’ means there is a likelihood that the dismissal of the enhancement would result in physical injury or other serious danger to others.

Authority:

PEN 1385(c)

Fourth Holding:

Section 1385(c) sets forth several mitigating circumstances for consideration. Two of them are relevant in this case. Under section 1385(c), absent a finding that dismissal would endanger public safety, a court retains the discretion to impose or dismiss enhancements provided that it assigns significant value to the enumerated mitigating circumstances when they are present.

Stated simply, if the court does not conclude that dismissal would endanger public safety, then mitigating circumstances strongly favor dismissing the enhancement. But ultimately, the court must determine whether dismissal is in furtherance of justice.

This means that, absent a danger to public safety, the presence of an enumerated mitigating circumstance will generally result in the dismissal of an enhancement unless the sentencing court finds substantial, credible evidence of countervailing factors that may nonetheless neutralize even the great weight of the mitigating circumstance, such that dismissal of the enhancement is not in furtherance of justice.

Authority:

PEN 1385(c)

People v. Walker (2024) 16 Cal.5th 1024, 1029, 1038

Fifth Holding:

We review a trial court’s sentencing decision under section 1172.75 for abuse of discretion and ask whether the trial court’s findings of fact are supported by substantial evidence, whether its rulings of law are correct, and whether its application of the law to the facts was neither arbitrary nor capricious.

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

Authority:

People v. Garcia (2024) 101 Cal.App.5th 848, 857

Nazir v. Superior Court (2022) 79 Cal.App.5th 478, 490

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

Sixth Holding:

We reject the Attorney General’s argument that the defendant forfeited this contention because he failed to raise it below. The defendant did not have to ask the trial court to apply the correct standard of law to preserve a claim on appeal that the trial court applied an incorrect one. Rather, a defendant is entitled to sentencing decisions based on the sentencing court’s informed discretion, including one informed by the correct law. In any event, we may review any question of law involved in any ruling or order that affects the defendant’s substantial rights, even if the defendant did not object below.

(Gary note: The court proceeded to analyze the trial court’s treatment or lack thereof of facts specific to this defendant that demonstrated the abuse of discretion.)

Authority:

PEN 1259

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

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

Case 000905

Posted on by Gary McCurdy

Error and/or relief

The trial court lacked potential information relevant to exercising its discretion at the resentencing hearing under section 1172.75. We reverse the judgment and remand for a new resentencing hearing.

First Holding:

On the date ultimately set for the hearing, the defendant’s attorney informed the court that he did not know the hearing on the petition was going to be held, and he needed a continuance to prepare for presenting mitigating information. The court denied the motion for continuance and held the hearing, striking the now-invalid prior prison term enhancement but otherwise making no changes to the sentence.

This was error. By its plain terms, section 1172.75 requires a full resentencing, not merely that the trial court strike the newly invalid enhancements. Thus, in a case such as this, the resentencing court has jurisdiction to modify every aspect of the sentence, and not just the portion subjected to the recall.

Authority:

PEN 1172.75

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

People v. Buycks (2018) 5 Cal.5th 857, 893

Second Holding:

Section 1172.75 provides that when a court resentences a defendant under the statute, it 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.

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.

Authority:

PEN 1172.75(d)(2), (d)(3)

Third Holding:

Section 1385(a) grants the superior court discretion, in furtherance of justice, to order an action to be dismissed. This includes the authority to strike a sentence enhancement. To apply this discretion, the court shall consider and afford great weight to evidence offered by the defendant to prove that any of several mitigating circumstances are present. Proof of the presence of one or more of these circumstances weighs greatly in favor of dismissing the enhancement, unless the court finds that dismissal of the enhancement would endanger public safety.

Authority:

PEN 1385

People v. Barboza (2021) 68 Cal.App.5th 955, 965

Fourth Holding:

We review a trial court’s denial of a continuance for abuse of discretion. 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 regarding childhood trauma and mental capacity.

This was apparently the defendant’s first request for a continuance, and the burden on the court of a continuance was minimal because there would have been no need to reschedule witnesses or consider juror inconvenience. 

(Gary note: The appellate court then outlined several factors specific to this defendant that the trial court failed to give any consideration to, leading to the appellate court’s decision to remand. The details are not useful for this summary.)

Because the court lacked evidence of all relevant mitigating factors identified in section 1385, we must remand for resentencing unless the record clearly indicates that the court would have reached the same conclusion even had it considered the mitigating factors.

Authority:

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

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

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

Fifth Holding:

Although a court is presumed to have considered all of the relevant factors in the absence of an affirmative record to the contrary, when it expressly states the basis for its decision and declines to consider other factors, we will not infer it weighed the other factors. Because the court expressly considered only the circumstances of the defendant’s crime, we cannot infer that it also considered mitigating circumstances.

Authority:

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

Discretion, Standard of review, Sufficiency of and substantial evidence

Case 000904

Posted on by Gary McCurdy

Error and/or relief

The trial court denied the defendant’s application for mental health diversion, finding that although defendant was eligible for diversion, he was not suitable because he posed an unreasonable risk of danger to public safety if treated in the community.

There is insufficient evidence of an unreasonable risk that defendant will commit a super strike offense if treated in the community. We will reverse the judgment and remand the matter for a new hearing on defendant’s present suitability for mental health diversion.

First Holding:

Penal Code section 1001.36 gives a trial court discretion to grant pretrial diversion for individuals with certain mental health disorders. The trial court can postpone prosecution at any time in the judicial process, either temporarily or permanently, to allow the defendant to undergo treatment. The Legislature intended the mental health diversion program to apply as broadly as possible.

Authority:

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

People v. Whitmill (2022) 86 Cal.App.5th 1138, 1147-1149

Vaughn v. Superior Court (2024) 105 Cal.App.5th 124, 133

Second Holding:

A defendant must be both eligible and suitable for mental health diversion. A defendant is eligible under section 1001.36 (b) if (1) the defendant has been diagnosed by a qualified mental health expert with a mental disorder as identified in the most recent edition of the DSM; and (2) the defendant’s mental disorder was a significant factor in the commission of the charged offense.

Authority:

Vaughn v. Superior Court (2024) 105 Cal.App.5th 124, 133

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

Third Holding:

As for suitability, four circumstances must be satisfied: (1) in the opinion of a qualified mental health expert the defendant’s mental disorder would respond to treatment; (2) the defendant consents to diversion and agrees to waive his or her speedy trial rights; (3) the defendant agrees to comply with treatment requirements; and (4) if treated in the community, the defendant will not pose an unreasonable risk of danger to public safety as defined in section 1170.18.

Authority:

PEN 1001.36(c)(1)-(4)

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

Fourth Holding:

A defendant poses an unreasonable risk of danger to public safety under section 1170.18(c) if there is an unreasonable risk that the defendant will commit a new violent felony within the meaning of section 667(e)(2)(C)(iv), otherwise known as a super strike.

The enumerated super strike offenses include murder, attempted murder, solicitation to commit murder, assault with a machine gun on a police officer, possession of a weapon of mass destruction, a serious or violent felony punishable by death or life imprisonment, a sexually violent offense, or a sexual offense committed against a minor under the age of 14.

Authority:

Gomez v. Superior Court (2025) 113 Cal.App.5th 671, 679

Fifth Holding:

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

There is no evidence defendant had been previously charged with a super strike offense, and his current offense is not a super strike. Defendant’s criminal history consists of two nonviolent felonies and four misdemeanor offenses. At the time of the hearing on his application, defendant was doing well in an outpatient program. He had successfully engaged in a treatment program for six months, he was maintaining housing and a job, he had not reoffended, and his treatment provider recommended defendant continue treatment in the community.

On this record, there is insufficient evidence to support a finding of an unreasonable risk that defendant will commit a super strike offense if treated in the community.

Authority:

Vaughn v. Superior Court (2024) 105 Cal.App.5th 124, 135

Discretion, Juveniles, Probation Parole PRCS, Sentencing, Standard of review

Case 000899

Posted on by Gary McCurdy

Error and/or relief

The electronic-data conditions are unreasonable under People v. Lent. We therefore strike them and remand for the juvenile court to consider whether to impose revised conditions. We also agree with the parties that the association condition should be modified to include a knowledge requirement.

First Holding:

When a ward of the juvenile court is placed on probation, the court may make any and all reasonable orders for the conduct of the ward, including conditions of probation that (1) are individually tailored, developmentally appropriate, and reasonable; (2) impose a burden that is proportional to the legitimate interests served by the conditions; and (3) are determined by the court to be fitting and proper to the end that justice may be done and the reformation and rehabilitation of the ward enhanced. A condition of probation that is impermissible for an adult criminal defendant is not necessarily unreasonable for a juvenile receiving guidance and supervision from the juvenile court.

Authority:

WIC 730(b)

In re Ricardo P. (2019) 7 Cal.5th 1113, 1118

Second Holding:

We review conditions of probation for an abuse of discretion, which occurs only if the condition is arbitrary or capricious or otherwise exceeds the bounds of reason under the circumstances. To determine whether a probation condition is reasonable, we apply a three-part test under Lent.

A condition cannot be held invalid under Lent unless it meets all three of the following prongs: it (1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not itself criminal, and (3) requires or forbids conduct which is not related to future criminality.

Authority:

In re Ricardo P. (2019) 7 Cal.5th 1113, 1118-1119

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

Third Holding:

In addition to being reasonable, a probation condition must be sufficiently precise for the probationer to know what is required and for the court to determine whether the condition has been violated, or else it is void for vagueness. And when a probation condition imposes limitations on a probationer’s constitutional rights, it must closely tailor those limitations to the purpose of the condition—the person’s reformation and rehabilitation—to avoid being invalidated as unconstitutionally overbroad.

Authority:

In re Sheena K. (2007) 40 Cal.4th 875, 890

Fourth Holding:

Whether a term of probation is unconstitutionally vague or overbroad presents a question of law, which we review de novo.

Authority:

In re David C. (2020) 47 Cal.App.5th 657, 661

Fifth Holding:

We conclude that the conditions are invalid under Lent. As to the first prong of Lent, there is no question that restricting the use of electronics The minor’s conduct involved asking the victim for her phone number, and asked the victim to put his number in her phone contacts list–which she did, but later deleted it. These acts do not establish the requisite relationship between the challenged probation conditions and the minor’s offense (sexual battery by restraint). Generally, decisions finding a sufficient connection between electronics search conditions and an offense rely on the probationer’s use of electronic devices to facilitate the offense.

In Appleton, the defendant met the minor victim online and later sexually assaulted him. The Court of Appeal held that the nexus between the offense and the probation condition at issue was sufficient even though it was somewhat attenuated. In Flores, the Court held that there was a reasonable relationship between the condition at issue and the defendant’s drug offense because the defendant used a website and an online program to arrange drug sales through a disguised phone number. Here, in contrast, there is no evidence that electronic devices played any role in facilitating the offense.

Here, in contrast, there is no indication that the minor ever actually contacted the victim through an electronic device. Indeed, he did not even have the ability to do so, as he never obtained her contact information. Nor is there any evidence that the victim attempted to communicate with the minor after the offense. The first two prongs of Lent have been met–the condition has no relation to the criminal conduct, and it restrains otherwise lawful conduct.

Authority:

People v. Appleton (2016) 245 Cal.App.4th 717, 719-720

People v. Flores (2026) 118 Cal.App.5th 563, 565-566, 573

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

Sixth Holding:

The third prong contemplates a degree of proportionality between the burden imposed by a probation condition and the legitimate interests served by the condition. Thus, the mere fact that monitoring a probationer’s electronic devices and social media might deter or prevent future criminal conduct is insufficient to justify a broad electronics search condition. The electronic-data conditions burden the minor’s privacy in a manner substantially disproportionate to the claimed purposes of ensuring compliance with two of his other probation conditions (a no-contact order and prohibition from possessing sexual materials).

Authority:

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

In re David C. (2020) 47 Cal.App.5th 657, 665 and fn 4

In re Amber K. (2020) 45 Cal.App.5th 559, 567-568

Seventh Holding:

The court ordered the following probation condition: “The Minor shall not associate with minors under the age of 14, unless it is his own child, unless in the presence of a responsible adult, or associated person is approved by the Probation Department.”

A probation condition is unconstitutionally overbroad if it (1) impinges on constitutional rights, and (2) is not tailored carefully and reasonably related to the compelling state interest in reformation and rehabilitation. The essential question in an overbreadth challenge is the closeness of the fit between the legitimate purpose of the restriction and the burden it imposes on the probationer’s constitutional rights—bearing in mind, of course, that perfection in such matters is impossible, and that practical necessity will justify some infringement.

The restriction is not unreasonable, but it must be tailored to require the minor’s express knowledge that the minor is under the age of 14. Generally speaking, if a probation condition prohibits a probationer from associating with a certain group of people, the condition is unconstitutionally vague unless it also requires that the probationer know a given person is in that group. Here, the minor may not reasonably know that an individual is under 14 years of age.

Thus, we modify the association condition to read: “The Minor shall not associate with minors whom he knows or reasonably should know are under the age of 14, unless it is his own child, unless he is in the presence of a responsible adult, or unless the associated person is approved by the Probation Department.”

Authority:

People v. Gonsalves (2021) 66 Cal.App.5th 1, 8–9

People v. Bray (2025) 112 Cal.App.5th 494, 503

People v. Turner (2007) 155 Cal.App.4th 1432, 1436 [modifying condition prohibiting association with people under age 18].

Appellate Principles, Duty of the court, Sentencing

Case 000893

Posted on by Gary McCurdy

Error and/or relief

It was error for the judge to stay the section 12022.1 enhancement under section 1385(b)(1). An enhancement may be stricken or imposed, unless there is some other legal reason it must be stayed rather than imposed.

First Holding:

Ordinarily, an enhancement must be either imposed or stricken in furtherance of justice under section 1385. Section 1385(b)(1) adds that, if the court has the authority pursuant to subdivision (a) to strike or dismiss an enhancement, the court may instead strike the additional punishment for that enhancement in the furtherance of justice in compliance with subdivision (a).

The trial court has no authority to stay an enhancement, rather than strike it—not, at least, when the only basis for doing either is its own discretionary sense of justice.

There are exceptions to this rule that permit courts to stay the punishment imposed for an enhancement, for example section 654 and rule 4.447 of the California Rules of Court. These exceptions are not discretionary; they are limited to the situation in which an enhancement that otherwise would have to be either imposed or stricken is barred by an overriding statutory prohibition. In that situation—and that situation only—the trial court can and should stay the enhancement.

Authority:

PEN 1385(b)(1)

People v. Lopez (2004) 119 Cal.App.4th 355, 364

Second Holding:

According to the transcript of the sentencing hearing, the trial court here relied on section 1385(b)(1) when it purported to stay the section 12022.1 enhancement. It does not appear that any overriding statute prohibits imposition of the enhancement in this case.

As a result, the court lacked the authority to stay the enhancement. In general, we presume a trial court knew and followed the law. Based on the statutory provision cited by the court, we conclude the court intended to strike the punishment for the enhancement rather than imposing an unauthorized stayed sentence.

The minute order from the sentencing hearing supports this conclusion by indicating that the court struck the enhancement, though it suggests the court did so at a prior hearing, which is not supported by the transcript. We will modify the judgment accordingly.

Authority:

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