Tag Archives: Standard of review

Discretion, Standard of review

Case 000958

Posted on by Gary McCurdy

Error and/or relief

The court abused its discretion by denying diversion because its finding that the defendant is ineligible for diversion is not supported by substantial evidence. Accordingly, we conditionally reverse and remand with instructions for the trial court to reconsider defendant’s application for mental health diversion.

First Holding:

The Legislature enacted Penal Code 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)(1) and (b)(2)

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.

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:

PEN 1001.35(a)

PEN 1001.36(b)

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:

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 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.

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 opinion goes on to recite details specific to this case on the question whether the mental disorder contributed to the offense, and concluded that there was not clear and convincing evidence to overcome the presumption that it did. The details are fact-specific and of no value in the context of these summaries, because unpublished decisions cannot be cited for comparison or authority or any other purpose.)

Authority:

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

Appellate Principles, Due process, Duty of the court, Standard of review

Case 000954

Posted on by Gary McCurdy

Error and/or relief

The court erred in by using the wrong standard in ruling on the defendant’s motion to modify the verdict pursuant to Penal Code section 1181(6). We reverse the judgment of the trial court and remand this matter for reconsideration of appellant’s motion to modify the verdict.

First Holding:

The defendant’s claim that the prosecution engaged in misconduct during oral argument is forfeited because there was no objection. Generally, a defendant must make a timely objection and a request that the jury be admonished to disregard the impropriety, unless the objection would have been futile or the error could not be cured by an admonition.

Authority:

People v. Aguirre (2025) 18 Cal.5th 629, 705

Second Holding:

It is true that a prosecutor may violate a defendant’s constitutional rights when the prosecutor engages in a course of conduct so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process. The claimed misconduct here was not so egregious as to result in a denial of due process.

Authority:

Miller v. Pate (1967) 386 U.S. 1, 7 [multiple misrepresentations of fact]

Brady v. Maryland (1963) 373 U.S. 83 [withholding of exculpatory evidence]

Griffin v. California (1965) 380 U.S. 609 [the prosecutor’s argument prejudices a specific right, such as the privilege against compulsory self-incrimination]

Third Holding:

After the jury returned the verdict, the defendant brought a motion to modify the verdict pursuant to section 1181(6) on the grounds that the evidence was insufficient as a matter of law to sustain a conviction for first degree murder. The defendant asked the court to review and reweigh the evidence presented at trial and modify the verdict to a finding of second-degree murder or manslaughter. The court applied the wrong standard in considering and denying the motion. It stated that had the judge been on the jury, he likely wuold have had a different decision, but he was not the jury, and he was required to honor the sanctity of the jury.

This is an inaccurate statement of the correct standard. The court conflated a sufficiency of the evidence review, in which the verdict is upheld if there is any evidence to support it, with its duty to independently determine whether the element of premeditation had been proven. Under the correct standard, in considering a motion under section 1181(6), the trial judge independently weighs the evidence, rather than applying the substantial evidence rule and determining legal sufficiency.

Authority:

People v. Veitch (1982) 128 Cal.App.3d 460, 468

Fourth Holding:

Section 1181(6) provides in relevant part that the court may grant a new trial when the verdict or finding is contrary to law or evidence, but if the evidence shows the defendant to be not guilty of the degree of the crime of which he was convicted, but guilty of a lesser degree thereof, the court may modify the verdict or judgment accordingly without granting or ordering a new trial.

Authority:

PEN 1181(6)

Fifth Holding:

In considering a motion under section 1181(6), the court extends no evidentiary deference in ruling on the motion. Instead, it independently examines all the evidence to determine whether it is sufficient to prove each required element beyond a reasonable doubt to the judge, who sits, in effect, as a 13th juror. It is the trial court’s function to determine independently whether it is satisfied that there is sufficient credible evidence to sustain the verdict.

Authority:

Porter v. Superior Court (2009) 47 Cal.4th 125, 133

People v. Dickens (2005) 130 Cal.App.4th 1245, 1254

Amelioration, Appellate Principles, Sentencing, Standard of review, Vicarious liability

Case 000951

Posted on by Gary McCurdy

Error and/or relief

On remand from the Supreme Court, we reconsider our earlier decision denying relief on the defendant’s appeal from the denial of his petition for recall of sentence under section 1172.6. We reverse the lower court’s denial and remand for the court to conduct a full evidentiary hearing under section 1172.6.

(Gary note: The Court of Appeal earlier had concluded that the defendant is not eligible to petition for relief under section 1172.6, because he could have raised the issue on direct appeal. The Supreme Court granted review and held it pending its opinion in People v. Lopez. Once that was decided–holding in a case with a similar procedural posture that Lopez was not ineligible despite not raising the issue on his direct appeal–it returned this case to the Court of Appeal for further proceedings consistent with the Lopez decision.)

First Holding:

In 2018, the Legislature passed SB 1437, effective January 1, 2019, which among other things amended the definition of felony murder in section 189. This amended felony-murder rule restricted culpability for murder to actual killers, aiders and abettors, and anyone who was a major participant in the underlying felony and acted with reckless indifference to human life unless the victim was a peace officer.

SB 1437 also added section 1170.95, later renumbered to section 1172.6, which allows a person convicted of felony murder or murder under the natural and probable consequences doctrine to file a petition with the court that sentenced the petitioner to have the petitioner’s murder conviction vacated and to be resentenced on any remaining counts, if, among other things, the petitioner could not presently be convicted of murder because of the changes to the law wrought by SB 1437.

SB 775 (2021–2022 Reg. Sess.) amended section 1172.6 further to expand eligibility for resentencing to persons convicted of murder pursuant to a theory under which malice is imputed to a person based solely on that person’s participation in a crime.

Authority:

People v. Antonelli (2025) 17 Cal.5th 719, 724

Second Holding:

We review the trial court’s decision at the prima facie stage de novo.

Authority:

People v. Bodely (2023) 95 Cal.App.5th 1193, 1200

Third Holding:

The jury instructions permitted the jury to find the defendant guilty by imputing malice to him as an accomplice rather than finding that he shared the principal’s intent and therefore independently harbored malice. The ambiguous instruction couches direct aiding and abetting liability in terms of the aider and abettor knowing the perpetrator intended to commit the crime, and the aider and abettor of implied malice murder need not intend the commission of the crime of murder. It conveyed that the defendant need only intend the commission of the perpetrator’s act, the natural and probable consequences of which are dangerous to human life, intentionally aid in the commission of that act and do so with conscious disregard for human life.

(Gary note: Presumably because the appellate court had gone through the review of the case law in the proceedings before it went up to the Supreme Court and came back down, there was little full discussion of the problem with the instruction. Powell, relied on by the court, does address the aiding and abetting issue, and Reyes (whose citation I listed below but was not cited in this opinion) approved the reasoning of Powell that, for aiding and abetting murder liability, the relevant act is the act that proximately causes death.

(The court remanded to the lower court to hold an evidentiary hearing, at which it will be determined whether the defendant can be found guilty under current law.)

Authority:

People v. Powell (2021) 63 Cal.App.5th 689, 714

People v. Lopez (2026) 19 Cal.5th 639, 658-668

People v. Reyes (2023) 14 Cal.5th 981, 990-992

Elements of crime, Sentencing, Sixth Amendment, Standard of review

Case 000947

Posted on by Gary McCurdy

Error and/or relief

The defendant was convicted of kidnapping, attempting kidnapping, and false imprisonment, and was sentenced on all three. We vacate the false imprisonment conviction and stay the sentence on the attempted kidnapping under section 654.

First Holding:

The defendant contends that (1) his conviction for the attempted kidnapping must be reversed because the completed kidnapping conviction covers the same conduct; and (2) his conviction for false imprisonment must be reversed because it is a lesser-included offense of the completed kidnapping crime of which he was convicted.

We review de novo these legal questions of whether convictions merge.

Authority:

People v. Chun (2009) 45 Cal.4th 1172

Second Holding:

The crime of kidnapping is a continuing offense that begins once the victim is forcibly moved and continues until such time as the kidnapper releases or otherwise disposes of the victim and has reached a place of temporary safety. Thus, defendant could not stand convicted of two counts of kidnapping based on the uninterrupted, several-hour period where the defendant remained under defendant’s control.

Authority:

People v. Barnett (1998) 17 Cal.4th 1044, 1159

People v. Thomas (1994) 26 Cal.App.4th 1328, 1334-1335

Third Holding:

But the defendant stands convicted of kidnapping and attempted kidnapping.

Attempted kidnapping is no longer viewed as a lesser-included offense to the completed crime of kidnapping because the former requires proof of specific intent and the latter requires proof of asportation.

As a result, the rule that merges a completed crime with its lesser-included offense does not apply to the crimes of kidnapping and attempted kidnapping, and defendant is properly convicted of both crimes—but he cannot be sentenced on both crimes under section 654 given the uninterrupted kidnapping in this case.

Authority:

PEN 654

PEN 663

People v. Fontenot (2019) 8 Cal.5th 57, 76

People v. Medina (2007) 41 Cal.4th 685, 702

People v. Sanders (2012) 55 Cal.4th 731, 7

Fourth Holding:

Courts must determine the proper unit of prosecution for each crime based on whether the actus reus prohibited by the statute—the gravamen of the offense—has been committed more than once. This doctrine explains why there could only be a single count of kidnapping, but does not account for the fact that attempted kidnapping and completed kidnapping are separate crimes, and that it is possible for defendant to stand convicted of both crimes.

Authority:

People v. Wilson (2015) 234 Cal.App.4th 193, 199

Fifth Holding:

Unlike attempted kidnapping, the crime of false imprisonment is a lesser included offense of kidnapping. As a result, the lesser-included crime merges upon conviction of the greater offense, and defendant’s false imprisonment conviction based on the same underlying conduct must be vacated.

Authority:

People v. Delacerda (2015) 236 Cal.App.4th 282, 296

People v. Chacon (1995) 37 Cal.App.4th 52, 65

People v. Ratcliffe (1981) 124 Cal.App.3d 808, 820 [if both the false imprisonment count and kidnap[p]ing count relate to the same act, double conviction is prohibited]

People v. Jandres (2014) 226 Cal.App.4th 340, 362 [a defendant cannot be convicted of both an offense and a lesser offense necessarily included within that offense, based upon his or her commission of the identical act]

People v. Milward (2011) 52 Cal.4th 580, 589 [when the jury expressly finds defendant guilty of both the greater and lesser offense the conviction of [the greater offense is controlling, and the conviction of the lesser offense must be reversed]

Appellate Principles, Juveniles, Probation Parole PRCS, Sentencing, Standard of review

Case 000941

Posted on by Gary McCurdy

Error and/or relief

The minor challenges several conditions of probation. We modify two of them.

First Holding:

The juvenile court has wide discretion to select appropriate probation conditions and may impose any reasonable condition that is fitting and proper to the end that justice may be done and the reformation and rehabilitation of the ward enhanced. The juvenile court’s discretion, while broad, is not unlimited.

A probation condition is invalid if it: (1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality.

In order to invalidate a condition of probation under this Lent test, all three factors must be found to be present. A condition of probation that would be unconstitutional or otherwise improper for an adult probationer may be permissible for a minor under the supervision of the juvenile court.

Authority:

In re Sheena K. (2007) 40 Cal.4th 875, 889

In re J.B. (2015) 242 Cal.App.4th 749, 754

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

Second Holding:

We review a juvenile court’s imposition of a probation condition for an abuse of discretion.

Authority:

In re Daniel R. (2006) 144 Cal.App.4th 1, 6

Third Holding:

Hearsay can at least sometimes be considered at dispositional hearings, and courts may base probation conditions upon information in probation reports.

Authority:

In re Vincent G. (2008) 162 Cal.App.4th 238, 243–244

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

Fourth Holding:

Probation conditions are to be given the meaning that would appear to a reasonable reader. We modify the probation condition that the minor not be around anyone known to him to be in possession of any dangerous or deadly weapons by inserting “known to him to be unlawfully in possession of the same.”

Authority:

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

(Gary note: Olguin supports the first sentence of that summary of the holding. The court did not cite any specific authority in the paragraphs in which it modified the language of that condition itself. However, In re Sheena K. (2007) 40 Cal.4th 875, 889, authorizes an appellate court to modify conditions of probation to render them constitutional.)

Fifth Holding:

A probation condition that imposes limitations on a person’s constitutional rights must closely tailor those limitations to the purpose of the condition to avoid being invalidated as unconstitutionally overbroad. 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 defendant’s constitutional rights.

People have a constitutional right to self-defense. The condition that “The minor shall not commit any act of violence against anyone” must be tailored to, “The minor shall not commit any act of violence against anyone, except for acts of lawful self-defense.”

Authority:

Cal. Const., art. I, sec. 1

In re Carlos C. (2018) 19 Cal.App.5th 997, 1002, 1004

People v. McDonnell (1917) 32 Cal.App. 694, 704