Tag Archives: Standard of review

Case 001003

Error and/or relief

The verdict form contained a typographical error regarding the appropriate subdivision on the use of firearm enhancement. The reference to subdivision (d) in the verdict from is stricken. There are several errors in the abstract of judgment and minute order that require correction.

First Holding:

A verdict is to be given a reasonable intendment and be construed in light of the issues submitted to the jury and the instructions of the court. Technical defects in a verdict may be disregarded if the jury’s intent to convict of a specified offense within the charges is unmistakably clear, and the accused’s substantial rights suffered no prejudice.

Where the error is in the recording of the judgment, as opposed to in the rendering of the judgment, it is clerical error which may be disregarded or corrected. Here, inclusion of subdivision (d) in addition to subdivision (a) was clearly a clerical error, and must be stricken from the judgment.

Authority:

People v. Jones (2014) 230 Cal.App.4th 373, 378–379

People v. Webster (1991) 54 Cal.3d 411, 447

People v. Camacho (2009) 171 Cal.App.4th 1269, 1273

People v. Trotter (1992) 7 Cal.App.4th 363, 370

Second Holding:

The minute order fails to reflect that on motion by the prosecution the court dismissed the factors in aggravation. It must be corrected to reflect the dismissal. The abstract of judgment reflects that the defendant must pay [more than $10,000] to the Victim Compensation Board twice. The duplicate entry must be stricken from the abstract of judgment. There is an error on the abstract of judgment in reflect the determinate term where an indeterminate term has also been imposed, and the abstract of judgment must be corrected accordingly.

(Gary note: The court cited no authority for its orders directing the corrections, except for Wright, which it cited to demonstrate how the abstract should have been prepared. I have include some cases that the court could have drawn from as authority, had it felt it necessary.)

Authority:

People v. Wright (2025) 113 Cal.App.5th 832, 848 [where remainder of sentence is indeterminate, in section six, the determinate form CR-290 must show no time]

People v. Mitchell (2001) 26 Cal.4th 181, 185

People v. Delgado (2008) 43 Cal.4th 1059, 1070

People v. Leon (2020) 8 Cal.5th 831, 855

In re Black (1967) 66 Cal.2d 881, 890

People v. Zackery (2007) 147 Cal.App.4th 380, 385

People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2

Case 000999

Error and/or relief

The court abused its discretion by denying the defendant’s request for mental health diversion because its finding that he is ineligible for diversion is not supported by substantial evidence.

First Holding:

The Legislature enacted sections 1001.35 and 1001.36 to authorize trial courts to grant pretrial mental health diversion to defendants diagnosed with qualifying mental disorders. To be eligible for mental health diversion, a defendant must meet two requirements.

One, the defendant must have been diagnosed within the past five years with a mental disorder identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders.

And two, the defendant’s mental disorder must be a significant factor in the commission of the offense.

Authority:

PEN 1001.36(b)

Gomez v. Superior Court (2025) 113 Cal.App.5th 671, 677

Lacour v. Superior Court (2025) 110 Cal.App.5th 391, 400

Second Holding:

Among the express purposes of the diversion program is to increase diversion of individuals with mental disorders to mitigate the individuals entry and reentry into the criminal justice system while protecting public safety.

Under section 1001.36(b), the court must find a causal connection unless there is clear and convincing evidence that the mental disorder was not a motivating factor, causal factor, or contributing factor to the defendant’s involvement in the alleged offense. Eligibility no longer turned on findings to the court’s satisfaction.

The statute requires the court to find that the defendant’s mental disorder was a significant factor unless clear and convincing evidence demonstrates otherwise. And it is the prosecution’s burden to provide clear and convincing evidence to overcome the presumption.

Authority:

Siam v. Superior Court (2026) 118 Cal.App.5th 67, 80

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

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

People v. Cabalar (2025) 117 Cal.App.5th 41, 52

Gomez v. Superior Court (2025) 113 Cal.App.5th 671, 688

Third Holding:

Once a defendant meets the eligibility requirements, the trial court must then determine whether a defendant is suitable for diversion using the four criteria outlined in section 1001.36(c): (1) A qualified mental health expert has determined the defendant’s symptoms would respond to mental health treatment; (2) the defendant has consented to diversion and waived the right to a speedy trial; (3) the defendant has agreed to comply with treatment as a condition of diversion, and (4) the court has determined the defendant will not pose an unreasonable risk of danger to public safety if treated in the community.

Authority:

PEN 1001.36(c)

Lacour v. Superior Court (2025) 110 Cal.App.5th 391, 400-401

Fourth Holding:

We review a trial court’s ruling on an application for mental health diversion for abuse of discretion and its factual findings for substantial evidence. A court abuses its discretion when it applies the wrong legal standard or bases its decision on express or implied factual findings that are not supported by substantial evidence. By definition, ‘substantial evidence’ requires evidence and not mere speculation.

Authority:

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

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

People v. Ramon (2009) 175 Cal.App.4th 843, 851

Fifth Holding:

In reviewing a trial court’s finding that a fact has been proved by clear and convincing evidence, the question before us is whether the record as a whole contains substantial evidence from which a reasonable fact finder could have found it highly probable that the dispute] fact was true.

More specifically, in this context, we must determine whether the record as a whole contains substantial evidence from which a reasonable fact finder could have found it highly probable that the defendant’s mental disorder was not a motivating factor, causal factor, or contributing factor to the defendant’s involvement in the alleged offense. To answer that question, we review the record in the light most favorable to the prevailing party and give due deference to how the trier of fact may have evaluated the credibility of witnesses, resolved conflicts in the evidence, and drawn reasonable inferences from the evidence.

(Gary note: The balance of the decision discusses the conclusions drawn by the trial court that it relied on to conclude that the mental disorder did not contribute to the offense. The appellate court concluded that the inferences the trial court drew were not substantial evidence to overcome by clear and convincing the presumption that the mental disorder was a contributing factor, and reversed the denial. It remanded for the court to reconsider the defendant’s application for mental health diversion consistent with the appellate court’s opinion.)

Authority:

Lacour v. Superior Court (2025) 110 Cal.App.5th 391, 401-402

Case 000994

Error and/or relief

The trial court erred in denying the defendant’s motion to vacate his guilty plea conviction under section 1473.7, because the defendant demonstrated entitlement to relief.

First Holding:

In response to the absence of a legal remedy for individuals who are no longer in custody but find themselves facing unanticipated immigration consequences resulting from a guilty or no contest plea entered years earlier, the Legislature added section 1473.7 to the Penal Code, effective January 1, 2017. The statute was subsequently amended to broaden eligibility for relief beyond the entry of a plea.

In relevant part, the statute now provides that individuals may file a motion for relief from a conviction or sentence on the basis that the conviction or sentence 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. Relief is not contingent upon establishing ineffective assistance of counsel.

Authority:

PEN 1473.7(a)

People v. Vivar (2021) 11 Cal.5th 510, 522-523

People v. Carrillo (2024) 101 Cal.App.5th 1, 12-13

Second Holding:

A defendant must satisfy three statutory requirements to be eligible to seek relief from a legally invalid conviction or sentence under section 1473.7(a)(1). The movant must show he is no longer in criminal custody, and the conviction or sentence being challenged is currently causing or has the potential to cause removal or the denial of an application for an immigration benefit, lawful status, or naturalization. The motion must also be timely.

Authority:

PEN 1473.7

People v. Carrillo (2024) 101 Cal.App.5th 1, 13

Third Holding:

To prevail under section 1473.7, a defendant must demonstrate that his conviction is legally invalid due to prejudicial error damaging his or her ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence.

The defendant must first show that he did not meaningfully understand the immigration consequences of his plea.

Next, the defendant must show that his misunderstanding constituted prejudicial error.

Prejudical error means demonstrating a reasonable probability that the defendant would have rejected the plea if the defendant had correctly understood its actual or potential immigration consequences.

Authority:

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

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

Fourth Holding:

We evaluate prejudicial error under the totality of the circumstances.

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.

The defendant’s probability of obtaining a more favorable outcome if he had rejected the plea and the difference between the bargained-for term and the likely term if he were convicted at trial are also relevant.

These factors are not exhaustive, and no single type of evidence is a prerequisite to relief.

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.

Authority:

People v. Espinoza (2023) 14 Cal.5th 311, 320-321

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

People v. Martinez (2013) 57 Cal.4th 555, 564

Lee v. United States (2017) 582 U.S. 357, 358

Fifth Holding:

On appeal, we apply independent review to evaluate whether a defendant has demonstrated a reasonable probability that he would have rejected the plea offer had he understood its immigration consequences.

We exercise independent judgment to determine whether the facts satisfy the rule of law, and defer to the trial court’s factual determinations if they are based on the credibility of witnesses the superior court heard and observed.

However, when, as in this case, the trial court’s findings derive entirely from written declarations and other documents, the trial court and the reviewing court are in the same position, and no deference is owed.

Authority:

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

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

Sixth Holding:

The focus of this inquiry is the defendant’s own error. Thus, the key is the mindset of the defendant and not what an objectively reasonable person would have understood under the circumstances.

The defendant is the only one with direct access to his state of mind, but a defendant’s assertion as to his or her state of mind is not accepted at face value by courts evaluating a section 1473.7 motion. Such assertions must be corroborated with objective evidence.

A party seeking relief under section 1473.7 is not required to provide the declaration of plea counsel.

Authority:

People v. Carrillo (2024) 101 Cal.App.5th 1, 16-17

People v. Mejia (2019) 36 Cal.App.5th 859, 871

People v. Alatorre (2021) 70 Cal.App.5th 747, 769

People v. Espinoza (2023) 14 Cal.5th 311, 325

People v. Padron (2025) 109 Cal.App.5th 950, 962

Seventh Holding:

The standard section 1016.5 advisement—given to all criminal defendants in California who plead guilty to any offense other than an infraction—that his or her criminal conviction may have adverse immigration consequences does not bar a defendant from seeking relief from his plea on grounds of mistake or ignorance based on immigration consequences. Thus, the fact the superior court advised defendant pursuant to section 1016.5 does not resolve the matter against defendant.

Authority:

People v. Patterson (2017) 2 Cal.5th 885, 889, 895

People v. Lopez (2021) 66 Cal.App.5th 561, 577-578

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

People v. Padron (2025) 109 Cal.App.5th 950, 962

Eighth Holding:

Prior to Padilla, there was no Sixth Amendment obligation on the part of defense counsel to affirmatively advise a defendant of the immigration consequences of a conviction. Rather, most courts had determined that no such duty existed.

As a general rule, a failure to anticipate changes in the law is not considered ineffective assistance of counsel.

(Gary note:  I think we all know what the court means by “Prior to Padilla, there was no Sixth Amendment obligation ….”  But I think a more accurate statement would be something like, “Padilla was the first pronouncement by the United States Supreme Court recognizing that the Sixth Amendment places an obligation on the part of defense counsel to ….”  The Sixth Amendment was certainly not amended to add any provision generating a new obligation.  The Sixth Amendment has been around for centuries, unchanged.  It was only its import that hadn’t been seen in the past, at least by the High Court.

(The court’s phrasing as I’ve set out in the Ninth Holding tracks what I’m saying.

(I mention this because I think sometimes it is important to argue that something is NOT new law, and that it has BEEN the law all along, notwithstanding that it had not previously been understood to be the law.  Why is that important?  It can make the difference in whether a court recognizes that your client’s rights were violated, even though it was only through a later appellate analysis that the nature of the violation was discovered.  We don’t want the court to assume that, because no court had seen it before, your client is not entitled to its benefit.

(There have been decisions, of course, that decline to revisit cases where, had the law been understood at the time, there would have been a different result.  But that is generally related to the principle of finality of judgment and the jurisdiction of the court to act on the case.  While not directly the same, think of the Estrada presumption of retroactivity of ameliorative changes in the law to those whose judgments are not final, in the absence of clear intent that the change was to be applied prospectively only.  

(Just sayin’.

(Of course, with respect to Padilla, the practical effect is that yes, the Sixth Amendment imposes the obligation on the attorney to provide the advice, but the failure to do so prior to Padilla is not tantamount to ineffective assistance of counsel as that principle has been described in the past.  As the court in this case said, relying on In re Grinder, “As a general rule, a failure to anticipate changes in the law is not considered ineffective assistance of counsel.”

(Was there a change in the law?  Or simply a change in the understanding of the Sixth Amendment?  Of course, the opposition might argue that court pronouncements dictate what is the law, and therefore they represent the law, and thererfore it wasn’t until Padilla that the Sixth Amendment created the obligation.  An interesting debate, or not, but for another time.)  

Authority:

Padilla v. Kentucky (2010) 559 U.S. 356

Chaidez v. United States (2013) 568 U.S. 342, 353

People v. Carrillo (2024) 101 Cal.App.5th 1, 17

In re Grinder (2025) 114 Cal.App.5th 845, 872

Ninth Holding:

Here, defendant entered his plea 15 years before the United States Supreme Court held in Padilla that the Sixth Amendment requires defense counsel to provide affirmative and competent advice to noncitizen defendants regarding the potential immigration consequences of their criminal cases. As such, defendant’s attestation that his attorney did not advise him about the immigration consequences of his plea is consistent with the state of the law at that time.

(Gary note: The appellate court examined and analyzed extensively many facts in the record from which it concluded that, based primarily on the principles I have extracted in this summary, the defendant was entitled to relief because his plea was not entered knowingly and intelligently within the contemplation of section 1473.7. I have omitted those details, some of which included citations to other cases apparently relevant to those details. Since this was an unpublished decision and cannot be cited for comparison, and since this is supposed to be a summary and not a copy of the entire decision, I have to stop about here.)

Authority:

PEN 1016.2

People v. Carrillo (2024) 101 Cal.App.5th 1, 18

People v. Rodriguez (2021) 68 Cal.App.5th 301, 307–312

 

Case 000993

Error and/or relief

The trial court failed to properly advise the defendant of his right to a jury trial on certain aggravating factors, and that his admissions to those factors were not knowing, intelligent, and voluntary. Accordingly, we vacate appellant’s sentence and remand the matter for a full resentencing.

Before the matter was submitted to the jury, appellant admitted the allegations of circumstances in aggravation under California Rules of Court, rule 4.421(b)(2) through (5). During the admission colloquy, the trial court advised appellant that he only had the right to a court trial on the truth of the allegations. We agree with the defendant that this advisement was incorrect, and that the record does not establish that his admissions were knowing, intelligent, and voluntary.

The factors in question under rule 4.421(b) are, in essence:
(2) The defendant’s prior convictions are numerous and of increasing seriousness;
(3) The defendant has served prior terms in prison;
(4) The defendant was on probation or parole when he committed the alleged offenses; and
(5) The defendant’s prior performance on probation and parole was unsatisfactory.

First Holding:

A criminal defendant has the right to a jury trial on the facts underlying aggravating factors used to justify imposition of an upper term sentence under section 1170(b). That right is not merely a state law entitlement, but is constitutionally required for all aggravating facts.

Authority:

PEN 1170(b)

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

People v. Wiley (2025) 17 Cal.5th 1069, 1078

Second Holding:

Section 1170(b)(3) provides a limited exception for prior convictions, permitting the court to consider them based on a certified record of conviction without submitting the prior convictions to a jury.

Our Supreme Court has clarified, however, that the exception is narrowly limited to the bare fact of a prior conviction and its elements.

Applying this principle, Wiley held that jury findings were required for aggravating factors based on increasingly serious prior convictions and unsatisfactory prior performance on probation or parole.

Authority:

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

Third Holding:

Because the Sixth Amendment affords a defendant the right to a jury trial on alleged aggravating factors, a valid admission to those factors requires the same advisements and waivers required for a stipulation to a prior conviction.

This includes advisement and waiver of the defendant’s Boykin-Tahl rights: the right to a jury trial, the right to confront adverse witnesses, and the privilege against self-incrimination.  A defendant must also be advised of the penal consequences of the admission.

If the trial court fails to properly advise the defendant of these rights or consequences, reversal is required unless the record affirmatively shows, under the totality of the circumstances, that the admission was knowing, intelligent, and voluntary.

Authority:

People v. Kinnear (2025) 116 Cal.App.5th 1116, 1127

People v. Mitchell (2026) 19 Cal.5th 729, 745–746

Boykin v. Alabama (1969) 395 U.S. 238

In re Tahl (1969) 1 Cal.3d 122

People v. Cross (2015) 61 Cal.4th 164, 170

People v. Mosby (2004) 33 Cal.4th 353, 361–365

Case 000992

Error and/or relief

We find sufficient evidence to support the conclusion that the defendant violated the conditions of his probation. But in light of the materially inaccurate information that appears to have influenced the defendant’s sentence, we cannot conclude that the superior court exercised informed discretion in imposing his sentence. Remanded for resentencing.

First Holding:

A probation violation is provable by a preponderance of the evidence. We review factual findings in this respect for substantial evidence. Under that standard, our review is limited to the determination of whether, upon review of the entire record, there is substantial evidence of solid value, contradicted or uncontradicted, which will support the trial court’s decision. In conducting this inquiry, we give full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.

Authority:

People v. Rodriguez (1990) 51 Cal.3d 437, 441

People v. Butcher (2016) 247 Cal.App.4th 310, 318

People v. Kurey (2001) 88 Cal.App.4th 840, 848

People v. Mumin (2023) 15 Cal.5th 176, 198

Second Holding:

There may be situations in which a prisoner is entitled to a new sentencing hearing, but only where he shows that: (1) material false information was (2) relied upon by the sentencing judge, and (3) the defendant had no opportunity at the time of sentencing to correct such false information. The probation officer’s report stated that the defendant was found in violation of probation for, among other things, using illicit drugs. In fact, he was not found to have used drugs, and he was not found in violation for using drugs.

The record here reflects that the court relied on that materially false information. When defense counsel attempted to bring it to the court’s attention that the statement was untrue, the court gave no feedback or acknowledgement and simply proceeded with sentencing, in contrast to an earlier correction on a different misunderstanding brought to the court’s attention by the prosecutor, whom the court thanked for bringing the correction to the court’s attention.

Defendants are entitled to sentencing decisions made in the exercise of the informed discretion of the sentencing court. On this record, which appears to show that the sentencing court believed that the drug-use allegations had been proven, we cannot be confident that the court exercised informed discretion.

Authority:

In re Beal (1975) 46 Cal.App.3d 94, 99–100

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

Third Holding:

A court’s alleged reliance on inaccurate information that appears to have contributed to the defendant’s sentence implicates the federal constitutional guarantee of due process. We evaluate such claims under the standard set forth in Chapman. This stricter standard of review requires reversal unless the error is harmless beyond a reasonable doubt.

Authority:

People v. Eckley (2004) 123 Cal.App.4th 1072, 1080

Chapman v. California (1967) 386 U.S. 18, 24

People v. Schuller (2023) 15 Cal.5th 237, 251

Fourth Holding:

In revoking and terminating probation, trial court is entitled to consider defendant’s performance on probation from the time it was originally granted until it was reinstated for the final time.

Authority:

People v. Black (2009) 176 Cal.App.4th 145, 151