Tag Archives: Standard of review

Appellate Principles, Discretion, Duty of the court, Fines and fees, Standard of review

Case 001156

Posted on by Gary McCurdy

Error and/or relief:

The trial court should have granted the defendant’s Pitchess motion and conducted an in camera review of the officers’ personnel records.

First Holding:

A movant under the Pitchess statutes must show, among other things, good cause for the discovery or disclosure sought. A showing of good cause is measured by relatively relaxed standards that serve to insure the production for trial court review of all potentially relevant documents.

This good cause requirement has two components. First, the movant must set forth the materiality of the information sought to the subject matter involved in the pending litigation. The function of this requirement is to exclude requests for officer information that are irrelevant to the pending charges. Accordingly, a defendant seeking Pitchess discovery must establish not only a logical link between the defense proposed and the pending charge, but also articulate how the discovery being sought would support such a defense or how it would impeach the officer’s version of events.

If the movant shows that the request is relevant to the pending charges, and explains how, the materiality requirement will be met. If information is material within the meaning of Brady, it is necessarily material to the subject matter involved in a criminal prosecution.

Authority:

EVID 1043

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

People v. Gaines (2009) 46 Cal.4th 172, 179

Association for Los Angeles Deputy Sheriffs v. Superior Court (2019) 8 Cal.5th 28, 41-42

Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1021

Brady v. Maryland (1963) 373 U.S. 83

Second Holding:

Second, the good cause requirement obliges the movant to articulate a reasonable belief that the agency has the type of information sought. This belief may be based on a rational inference. What the defendant must present is a specific factual scenario of officer misconduct that is plausible when read in light of the pertinent documents. The information sought must be described with some specificity to ensure that the defendant’s request is not so broad as to garner all information that has been obtained by the People in their investigation of the crime but is limited to instances of officer misconduct related to the misconduct asserted by the defendant. This specificity requirement excludes requests for officer information that are irrelevant to the pending charges.

Authority:

Association for Los Angeles Deputy Sheriffs v. Superior Court (2019) 8 Cal.5th 28, 42

Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1021, 1025

Third Holding:

If the trial court finds good cause for the motion, the court must examine the requested materials in camera to determine whether they should be disclosed to the defendant and whether certain specified categories of information must be withheld.

Authority:

City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 83

Fourth Holding:

We review a trial court’s denial of a Pitchess motion for an abuse of discretion.

Authority:

People v. Breaux (1991) 1 Cal.4th 281, 311

Fifth Holding:

By parsing the defendant’s claims as alleging a conspiracy among the several correctional officers, rather than focusing on the individual involvement of each officer and whether the defendant presented a plausible factual scenario in which, for example, one of the officers planted the contraband and/or falsified his report, the trial court abused its discretion as its ruling falls outside the bounds of reason.

Authority:

People v. Memro (1995) 11 Cal.4th 786, 850

Sixth Holding:

We find that the defendant’s Pitchess motion presented a specific factual scenario establishing a plausible factual foundation for his allegations.

Authority:

City of San Jose v. Superior Court (1998) 67 Cal.App.4th 1135, 1147

Seventh Holding:

A showing of good cause is measured by relatively relaxed standards that serve to insure the production for trial court review of all potentially relevant documents. Further, the defendant need not point to any corroboration for the defendant’s account, and is also not required to present a credible or believable factual account of, or a motive for, police misconduct.

Rather, all that is required is the presentation of a scenario that might or could have occurred. Such a scenario is plausible because it presents an assertion of specific police misconduct that is both internally consistent and supports the defense proposed to the charges. Depending on the circumstances of the case, a sufficient factual allegation in a Pitchess motion may consist of a denial of the facts asserted in the police report.

Considering the relatively relaxed standards which should be applied by the trial court to assess whether such a factual scenario was plausible, the defendant clearly made such a showing here.

Authority:

People v. Gaines (2009) 46 Cal.4th 172, 179

Uybungco v. Superior Court (2008) 163 Cal.App.4th 1043, 1049

Eighth Holding:

Where the trial court has erroneously rejected a showing of good cause for Pitchess discovery and has not reviewed the requested records in camera, the proper remedy is not outright reversal, but a conditional reversal with directions to review the requested documents in chambers on remand.

Following remand, after reviewing the confidential materials in chambers, the trial court may determine that the requested personnel records contain no relevant information and reinstate the judgment.

It is also possible for the trial court to determine on remand that relevant information exists and should be disclosed. In that event, that the trial court must order disclosure, allow the defendant an opportunity to demonstrate prejudice, and order a new trial if there is a reasonable probability the outcome would have been different had the information been disclosed.

Authority:

People v. Gaines (2009) 46 Cal.4th 172, 180-181

Ninth Holding:

We find that the defendant, by failing to object when they were imposed, has forfeited his argument challenging the fines, fees, and assessments on appeal. In general, a defendant who fails to object to the imposition of fines, fees, and assessments at sentencing forfeits the right to challenge those fines, fees, and assessments on appeal.

This general rule applies when the relevant statute includes an ability to pay component, including when the defendant makes a constitutional argument. Given that the defendant is in the best position to know whether he has the ability to pay, it is incumbent on him to object to the fine and demonstrate why it should not be imposed. Ability to pay is a factual determination that is properly raised and determined first in the trial court.

We recognize however, there is a possibility the defendant demonstrates he is entitled to a new trial based on the outcome of the Pitchess proceedings below. In that event, and assuming he is again convicted following that new trial, he may address any applicable fines and fees that may be imposed at sentencing.

Authority:

People v. Greeley (2021) 70 Cal.App.5th 609, 624

People v. Aguilar (2015) 60 Cal.4th 862

People v. Trujillo (2015) 60 Cal.4th 850, 856-858

People v. Avila (2009) 46 Cal.4th 680, 729

People v. Frandsen (2019) 33 Cal.App.5th 1126, 1154

People v. McCullough (2013) 56 Cal.4th 589, 597

Appellate Principles, Sentencing, Sixth Amendment

Case 001155

Posted on by Gary McCurdy

Error and/or relief

The court erred in imposing the upper term based on factors that were not submitted to a jury for proof beyond a reasonable doubt or stipulated to by the defendant.

First Holding:

On January 1, 2022, the Legislature amended section 1170 to provide that the trial court shall, in its discretion impose a sentence not to exceed the middle term except in the following circumstance: The court may impose a sentence exceeding the middle term only when there are circumstances in aggravation of the crime that justify the imposition of an upper term sentence, and the facts underlying those circumstances 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.

Notwithstanding these provisions, the court may consider the defendant’s prior convictions in determining sentencing based on a certified record of conviction without submitting the prior convictions to a jury.

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 748

Second Holding:

In Wiley, the Supreme Court held that aggravating factors must be found by a jury, including the increasing seriousness of prior convictions and unsatisfactory performance on probation, to be true beyond a reasonable doubt, in order to support the imposition of the upper term. It noted that the United States Supreme Court, in Erlinger, held that virtually any fact that increases the prescribed range of penalties to which a criminal defendant is exposed must be resolved by a unanimous jury beyond a reasonable doubt (or freely admitted in a guilty plea).

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1082, 1084-1085

Erlinger v. United States (2024) 602 U.S. 821, 834

Third Holding:

The facts supporting every aggravating circumstance upon which the trial court relies to justify imposition of the upper term must be properly proven as the statute requires. The finding regarding the prior convictions as an adult for defendant were numerous and of increasing seriousness must be found by a jury beyond a reasonable doubt, unless the defendant stipulates to its truth or waives a jury trial. The same applies to the determination of whether a defendant has served a prior prison term.

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 757

People v. Wiley (2025) 17 Cal.5th 1069, 1082, 1082-1084, 1085 [other than the fact of the prior conviction, a defendant is entitled to a jury determination on any other aggravating factors that expose him to a sentence more serious than the midterm sentence]

Fourth Holding:

A sentence imposed under section 1170(b) must be reversed and remanded unless the reviewing court concludes beyond a reasonable doubt that a jury, applying that same standard, would have found true all of the aggravating facts upon which the court relied to conclude the upper term was justified, or that those facts were otherwise proved true in compliance with the current statute. Lack of a jury trial is not harmless under Chapman if the record contains evidence that could rationally lead to a contrary finding with respect to the aggravating fact at issue.

Authority:

Chapman v. California (1967) 386 U.S. 18

People v. Wiley (2025) 17 Cal.5th 1069, 1082, 1087

Appellate Principles, Immigration, Sentencing, Standard of review

Case 001153

Posted on by Gary McCurdy

Error and/or relief:

The court erred in denying the defendant’s motion to vacate her plea under section 1473.7 by concluding that she did not establish prejudicial error regarding her misunderstanding of the immigration consequences of her plea.

First Holding:

Section 1473.7(a)(1) provides that a person who is no longer in criminal custody may file a motion to vacate a conviction if the conviction is legally invalid due to prejudicial error damaging the moving party’s ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence.

Authority:

PEN 1473.7

Second Holding:

To prevail, the moving party must show three things.

First, they must show that they did not meaningfully understand the immigration consequences of their plea.

Second, they must show that their misunderstanding constituted prejudicial error.

And third, they must show that the conviction or sentence being challenged currently is causing or has the potential to cause removal or the denial of an application for an immigration benefit, lawful status, or naturalization. The moving party bears the burden of establishing entitlement to relief by a preponderance of the evidence.

Authority:

PEN 1473.7(a)1, (e)(1), (f)(1)

People v. Espinoza (2023) 14 Cal.5th 311, 319

Third Holding:

To show prejudicial error under section 1473.7(e)(1), the moving defendant must demonstrate a reasonable probability that the defendant would have rejected the plea if the defendant had correctly understood its actual or potential immigration consequences.

Factors particularly relevant to this inquiry include the defendant’s ties to the United States, the importance the defendant placed on avoiding deportation, the defendant’s priorities in seeking a plea bargain, and whether the defendant had reason to believe an immigration-neutral negotiated disposition was possible. Also relevant are the defendant’s probability of obtaining a more favorable outcome if he or she had rejected the plea, as well as the difference between the bargained-for term and the likely term if he or she were convicted at trial.

Authority:

People v. Vivar (2021) 11 Cal.5th 510, 529-530

People v. Espinoza (2023) 14 Cal.5th 311, 319-320

Fourth Holding:

A defendant must provide objective evidence to corroborate factual assertions. Objective evidence includes facts provided by declarations, contemporaneous documentation of the defendant’s immigration concerns or interactions with counsel, and evidence of the charges the defendant faced.

However, a defendant’s self-serving statement—after trial, conviction, and sentence—that with competent advice he or she would have accepted or rejected a proffered plea bargain, is insufficient in and of itself to sustain the defendant’s burden of proof as to prejudice, and must be corroborated independently by objective evidence.

Authority:

People v. Espinoza (2023) 14 Cal.5th 311, 321

People v. Bravo (2021) 69 Cal.App.5th 1063, 1074

Fifth Holding:

We independently review whether a movant has demonstrated entitlement to relief under section 1473.7(a)(1). In this context, independent review does not mean de novo review. We exercise independent judgment to determine whether the facts satisfy the rule of law. We weigh and consider all relevant circumstances, with no single factor being dispositive. We are in the same position as the trial court in interpreting written declarations when reviewing a cold record in a section 1473.7 proceeding. We may not simply second-guess factual findings that are based on the trial court’s own observations. We afford particular deference to factual findings based on the trial court’s personal observations of witnesses.

Authority:

People v. Vivar (2021) 11 Cal.5th 510, 524, 527-528

People v. Coca (2023) 96 Cal.App.5th 451, 458

Sixth Holding:

But we do not defer to those findings that are based on written materials, since we are similarly situated to the trial court when interpreting a cold record. And we may reach a different conclusion from the trial court on an independent examination of the evidence even where the evidence is conflicting and the trial court’s conclusions are based in part on its assessment of the credibility of witnesses it heard and observed.

Ultimately, it is for us to decide, exercising our independent judgment, whether the evidence, taken as a whole, establishes prejudicial error damaging defendant’s ability to meaningfully understand the immigration consequences of the charges to which she pled, or her ability to defend against those consequences or to knowingly accept them.

Authority:

People v. Hernandez (2026) 20 Cal.5th 598

Seventh Holding:

In determining whether a defendant has established error for purposes of section 1473.7(a)(1), we focus on the defendant’s subjective understanding at the time they entered their guilty plea. We ask whether the defendant has shown that they were unable to meaningfully understand the immigration consequences of their plea, or that their ability to defend against or knowingly accept those consequences was impaired. The key is the mindset of the defendant and not what an objectively reasonable person would have understood under the circumstances.

Authority:

People v. Hernandez (2026) 20 Cal.5th 598, 614

Eighth Holding:

Because the error inquiry focuses on the defendant’s subjective understanding, courts evaluating section 1473.7(a)(1) motions must look beyond the record of the plea and consider the totality of the circumstances bearing on the inquiry.

(Gary note: The court then spent several pages analyzing the evidence that the defendant and the People presented at the hearing, and concluded that she established that she did not meaningfully understand the immigration consequences and that she suffered prejudice from that lack of understanding. The details are case-specific and of no value to any reader of this summary of an unpublished case.)

Authority:

People v. Hernandez (2026) 20 Cal.5th 598, 615

People v. Mosby (2004) 33 Cal.4th 353, 361 [going beyond the courtroom colloquy and examining the totality of circumstances to evaluate whether plea was knowing and voluntary]

People v. Patterson (2017) 2 Cal.5th 885, 898-899 [in deciding whether to permit withdrawal of guilty plea under section 1018 based on defendant’s mistake or ignorance courts consider all factors necessary to bring about a just result.]

Immigration, Standard of review

Case 001132

Posted on by Gary McCurdy

Error and/or relief

In light of Hernandez, decided after the lower court’s denial of the defendant’s motion to vacate her conviction under section 1473.7, the order denying the defendant’s section 1473.7(a)(1) motion is reversed. The matter is remanded to the trial court with directions to allow the parties to present additional evidence and to rehear the motion in light of that additional evidence, Hernandez, and other applicable law at the time of rehearing.

First Holding:

Under federal immigration law, grand theft auto is a crime of moral turpitude. A noncitizen without lawful status who is convicted of a crime of moral turpitude is ineligible for admission to the United States as well as cancellation of removal.

Authority:

People v. Curiel (2023) 92 Cal.App.5th 1160, 1173

U.S. v. Esparza-Ponce (9th Cir. 1999) 193 F.3d 1133, 1136-1137

Second Holding:

To establish eligibility to withdraw a guilty plea under section 1473.7(a)(1), a defendant must show, by a preponderance of the evidence, (1) error damaging the defendant’s ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence and (2) that the damage resulted in prejudice

Error may take the form of the defendant’s lack of a meaningful understanding of the actual or potential adverse immigration consequences of their plea; the defendant’s subjective misunderstanding or ignorance that damaged their ability to defend against these consequences; or the defendant’s failure to knowingly accept these consequences.

A defendant establishes prejudice by showing that there is a reasonable probability that they would not have entered the plea if they had correctly understood its actual or potential immigration consequences and their options for defending against those consequences.

Authority:

PEN 1473.7

People v. Hernandez (2026) 20 Cal.5th 598, 613, 621 fn. 4, 626

Third Holding:

Because the burden is on the defendant to establish error and because courts must consider the totality of the circumstances in determining whether the defendant has satisfied this burden, it will generally be in a defendant’s interest to create a robust record. However, no specific kind of evidence is a prerequisite to relief.

Authority:

People v. Hernandez (2026) 20 Cal.5th 598, 618

People v. Espinoza (2023) 14 Cal.5th 311,] 325 [The more robust and inclusive a record, the greater the opportunity for effective persuasion and meaningful judicial review]

Fourth Holding:

In reviewing a trial court’s denial of a section 1473.7(a)(1) motion, we independently review the evidence in the record. We do not defer to those findings by the trial court that are based on written materials, since we are similarly situated to the trial court when interpreting a cold record. And we may reach a different conclusion from the trial court on an independent examination of the evidence, even where the evidence is conflicting and the trial court’s conclusions are based in part on its assessment of the credibility of witnesses it heard and observed.

Ultimately, it is for us to decide, exercising our independent judgment, whether the evidence, taken as a whole, establishes prejudicial error damaging the defendant’s ability to meaningfully understand the immigration consequences of the charges to which the defendant pled, or the defendant’s ability to defend against those consequences or to knowingly accept them.

Authority:

People v. Hernandez (2026) 20 Cal.5th 598, 613

Fifth Holding:

Hernandez laid out several principles to guide trial courts in their conclusion whether a defendant has established error.

(Gary note: The opinion lays out several passages from Hernandez, describing approaches a defendant might take. Rather than reproducing the nearly thousand words quoted from Hernandez, I have decided to simply suggest you read Hernandez itself. But while every word is certainly important, I have chosen to include a bit on the recognition that the focus is on the defendant’s subjective understanding. This is a tad different from tests that compare a defendant’s actions to the amorphous objective “reasonable person” standard. However, the subjective understanding must be corroborated by objective evidence.)

Because the error inquiry focuses on the defendant’s subjective understanding, courts evaluating section 1473.7(a)(1) motions must look beyond the record of the plea and consider the totality of the circumstances bearing on the inquiry. While the focus of the error inquiry is on the defendant’s subjective understanding, a defendant’s bare assertion that they did not understand the immigration consequences or the options available to them to defend against those consequences is insufficient to establish error; the assertion must be corroborated by objective evidence.

Authority:

People v. Hernandez (2026) 20 Cal.5th 598, 615, 621, fn. 4 [The error determination turns on the defendant’s state of mind as established by the defendant’s testimony about their subjective understanding and corroborated by objective evidence.]

Sixth Holding:

Section 1260, by its terms, confers authority on appellate courts to remand the cause to the trial court for such further proceedings as may be just under the circumstances. It is familiar appellate practice to remand causes for further proceedings without deciding the merits, where justice demands that course in order that some defect in the record may be supplied. Such a remand may be made to permit further evidence to be taken.

Hernandez stated that remand to the trial court for further development of the record will be appropriate in many appeals from denials of section 1473.7(a)(1) motions that were pending when the Supreme Court issued its decision. We conclude this is one of those appeals.

Authority:

PEN 1260

CCP 906

People v. Wilson (2024) 16 Cal.5th 874, 948

Carter v. California Dept. of Veterans Affairs (2006) 38 Cal.4th 914, 931

Discretion, Sentencing, Standard of review

Case 001129

Posted on by Gary McCurdy

Error and/or relief

The trial court abused its discretion in denying mental health diversion. There was insufficient evidence to support the court’s determination that she was at risk of committing a super strike offense if treated in the community.

First Holding:

To qualify for pretrial diversion, criminal defendants must show they are both eligible and suitable for the program. A defendant is eligible for diversion if he or she has been diagnosed with a mental disorder that was a significant factor in the commission of the charged offense.

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

Authority:

PEN 1001.36(a), (b)

People v. Bunas (2022) 79 Cal.App. 5th 840, 859-860

Second Holding:

Under section 1170.18(c), an unreasonable risk of danger to public safety means an unreasonable risk that the defendant will commit a new violent felony within the meaning of section 667(e)(2)(C)(iv). Those violent felonies, commonly referred to as “super strikes,” include murder and attempted murder.

(Gary note: effective 1/1/2027, the language of 1001.36 changes–it drops the reference to section 1170.18, and instead states, “The defendant will not pose a substantial and undue risk to the physical safety of another person, if treated in the community.” That’s a much lower bar for the court to justify a finding that the person poses disqualifying risk.)

Authority:

PEN 1170.18

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

People v. Graham (2024) 102 Cal.App. 5th 787, 799

Third Holding:

We review a trial court’s order denying mental health diversion for abuse of discretion and its factual findings for substantial evidence. 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, 448-449

People v. Cluff (2001) 87 Cal.App. 4th 991, 998 [A trial court abuses its discretion when the factual findings critical to its decision find no support in the evidence]

Fourth Holding:

We conclude the evidence is insufficient to support the trial court’s finding that defendant poses an unreasonable risk of committing a super strike if treated in the community. The court relied on the underlying charges and defendant’s limited criminal past to find defendant posed an unreasonable public safety risk. Defendant has no history of arrests or convictions for a super strike offense, and the underlying charges were not super strikes.

Authority:

People v. Whitmill (2022) 86 Cal.App. 5th 1138, 1151

Gomez v. Superior Court (2025) 113 Cal.App. 5th 671, 690 [violent conduct alone is insufficient alone to support a finding defendant was likely to commit a super strike offense]

Fifth Holding:

Section 1001.36 provides the trial court with discretion to deny diversion even if it finds a defendant meets the statutory eligibility and suitability criteria. But residual discretion must be exercised consistent with the principles and purpose of the governing law.

Authority:

People v. Cabalar (2025) 117 Cal.App. 5th 41, 53

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

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

Sixth Holding:

Here, although the trial court mentioned its residual discretion, its ultimate finding that defendant’s treatment plan was insufficient to address defendant’s mental health disorders did not reflect consideration of the underlying purposes of the statute nor did it explain why diversion would not meet those goals.

As such, we cannot conclude the court properly exercised its residual discretion.

Authority:

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

Vaughn v. Superior Court (2024) 105 Cal.App. 5th 124, 139