Tag Archives: Standard of review

Appellate Principles, Elements of crime, Sentencing, Sixth Amendment, Standard of review, Sufficiency of and substantial evidence, Vicarious liability

Case 000923

Posted on by Gary McCurdy

Error and/or relief

The instructional errors were prejudicial regarding the multiple-murder and lying-in-wait special circumstance findings attached to counts 1, 2 and 3.

We reverse those findings, but the prosecution may retry these special circumstance allegations.

The firearm enhancements found true as to counts 1, 2 and 3 must be reversed due to prejudicial error, including pleading deficiencies and insufficiency of the evidence. Retrial of the firearm enhancements is barred by principles of double jeopardy.

The trial court also erred by denying the defendant’s renewed motion for a transfer hearing in juvenile court under Welfare and Institutions Code section 707 as amended by AB 2361 (2021–2022 Reg. Sess.).

Accordingly, we conditionally reverse the judgment and remand the matter with directions to refer the case to the juvenile court for a transfer hearing under current law.

First Holding:

In setting forth the relevant pertinent facts in an appellate opinion, we view the record in the light most favorable to the judgment.

Authority:

In re Jesus O. (2007) 40 Cal.4th 859, 861

People v. Johnson (1980) 26 Cal.3d 557, 578

Second Holding:

In counts 1 through 3, the jury convicted appellant of first degree murder. The jury found true four special circumstance allegations: (1) lying in wait; (2) multiple murders; (3) murder in the commission of robbery; and (4) murder in the commission of burglary. Because of the special circumstance findings, appellant was sentenced to three consecutive LWOP terms.

There were several instructional errors, but many we find to have been harmless error. The instructional errors were prejudicial regarding the multiple-murder and lying-in-wait special circumstance findings attached to counts 1, 2 and 3.

We reverse those findings, but the prosecution may retry these special circumstance allegations. Even if the People do not elect to do so, however, a full resentencing is required.

(Gary note: The opinion concluded that some of the instructions permitted finding guilt on the natural and probable consequences doctrine, which has been abolished. Cutting to the chase in this summary, the court stated in its analysis whether the instructional error was harmless, the court stated, that the evidence overwhelmingly demonstrated that appellant acted as a major participant in these crimes and with his own reckless indifference to human life. It was satisfied beyond a reasonable doubt that any rational juror who convicted appellant of first degree murder would have necessarily found the facts required under section 189(e)(3).

(Also, the jury was erroneously told at times that, if appellant was not an actual killer, the lying-in-wait and the multiple-murder special-circumstance allegations could be found true merely if he was a major participant who acted with reckless indifference to human life. This was legally incorrect. If appellant was not the actual killer, then the prosecution was required to prove that he acted with an intent to kill for each murder in order to establish these special circumstance allegations. The court did not find the error harmless on those instructions, and reversed those special circumstances, allowing the prosecution to retry them.)

Authority:

PEN 188(a)(3) [Malice shall not be imputed to a person based solely on his or her participation in a crime]

PEN 190.2(c) and (d)

People v. Curiel (2023) 15 Cal.5th 433, 449

People v. Hallock (1989) 208 Cal.App.3d 595, 607 [conviction reversed for instructional error may be retried if supported by sufficient evidence]

People v. Buycks (2018) 5 Cal.5th 857, 893 [when part of a sentence is stricken on review, a full resentencing is required so the trial court can exercise its sentencing discretion in light of the changed circumstances]

Third Holding:

We reject the prosecution’s contention that the defendant has forfeited claims of instructional error by failing to object. Trial courts have a sua sponte duty to correctly instruct on the elements of the charged offenses and on special circumstance allegations.

No objection is required to preserve a claim for appellate review when the jury instructions omit an essential element of a charge.

Moreover, a court may review any question of law involved in an instruction which affects the substantial rights of the defendant. As alleged, the instructional errors in this matter altered the mens rea and actus reus elements that the jury was required to find.

Accordingly, we decline to find forfeiture, and we will review this claim on its merits.

Authority:

PEN 1259

People v. Mil (2012) 53 Cal.4th 400, 409

People v. Hardy (2018) 5 Cal.5th 56, 91 [declining to rely on forfeiture doctrine where alleged instructional errors would have impacted defendant’s substantial rights].

Fourth Holding:

The instructional errors impacted appellant’s constitutional rights because they permitted the jury to convict him on an invalid legal theory. Accordingly, we must reverse the convictions unless, after examining the entire cause—including the evidence and considering all relevant circumstances—we determine the errors, including the disputed ones, were all harmless beyond a reasonable doubt.

Authority:

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

In re Ferrell (2023) 14 Cal.5th 593, 602

People v. Aledamat (2019) 8 Cal.5th 1, 13

Fifth Holding:

When a jury is instructed on both a legally valid theory and a legally invalid theory of guilt, harmlessness can be shown if the jury verdict on other points effectively embraces the valid theory or if, based on the evidence, it is impossible to have found what the verdict did find without also finding the facts underlying the valid theory.

To make this assessment, we must rigorously review the evidence to determine whether any rational juror who found the defendant guilty based on an invalid theory, and made the factual findings reflected in the jury’s verdict, would necessarily have found the defendant guilty based on a valid theory as well.

We must be convinced that the errors were harmless beyond a reasonable doubt, and we must be satisfied that this standard is beyond serious debate.

We have rigorously reviewed the totality of the record to determine whether, based on the evidence, it is impossible for a rational juror to have found what the verdicts did find without also finding the facts underlying a valid theory.

Authority:

People v. Hin (2025) 17 Cal.5th 401, 443-444

In re Lopez (2023) 14 Cal.5th 562, 568

In re Ferrell (2023) 14 Cal.5th 593, 602

Sixth Holding:

Jurors are presumed able to understand and correlate instructions and are further presumed to have followed the court’s instructions.

Authority:

People v. Sanchez (2001) 26 Cal.4th 834, 852

Seventh Holding:

Section 12022.53(d) requires personal discharge by the defendant; it does not impose vicarious liability for another principal’s firearm discharge. Vicarious firearm liability is available only when a gang enhancement is proven. Once the gang allegations were dismissed on motion of the prosecution, the vicarious theory was unavailable.

Authority:

PEN 12022.53(d) and (e)

PEN 186.22(b)(1)

People v. Cooper (2023) 14 Cal.5th 735, 746

Eighth Holding:

Because personal discharge by appellant was neither charged nor expressly found true by the jury in the verdict forms, the court could not supply that missing fact at sentencing. Any fact increasing punishment must be found by the jury beyond a reasonable doubt.

The trial court lacked authority to stay the count 1 enhancement merely as an exercise of sentencing discretion. The court was only authorized to strike or dismiss the enhancement, not to stay it even based on its own discretionary sense of justice. Based on principles of double jeopardy, retrial is barred.

Authority:

PEN 12022.53(j)

Apprendi v. New Jersey (2000) 530 U.S. 466, 490

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

Porter v. Superior Court (2009) 47 Cal.4th 125, 132–133 [“Because the prosecution had a full opportunity to prove the facts necessary for a conviction but failed to do so, double jeopardy bars a second bite at the apple”]

Curry v. Superior Court of San Francisco (1970) 2 Cal.3d 707, 712 [jeopardy attaches when a defendant is placed on trial in a court of competent jurisdiction on a valid accusatory pleading]

Ninth Holding:

In January 2011, appellant was 16 years old when he committed the present crimes. In 2012, he was charged directly in adult court. In 2016, appellant filed a motion for remand to the juvenile court and a transfer hearing under Proposition 57, the Public Safety and Rehabilitation Act of 2016 (Proposition 57). Proposition 57 was passed in November 2016, and it prohibited prosecutors from charging crimes against juveniles directly in adult court.

Authority:

People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 303

Tenth Holding:

Before sentencing occurred in this matter, AB 2361 (2021–2022 Reg. Sess.) amended Welfare and Institutions Code section 707. These changes were effective January 1, 2023.

AB 2361 increased the burden of proof the prosecution was required to establish in order for a juvenile to be prosecuted in adult criminal court.

Under the newer heightened standard, it must be shown by clear and convincing evidence that a juvenile should be transferred to adult criminal court.

These developments materially changed the requirements for transfer in effect when the defendant originally waived his right to a transfer hearing. AB 2361 applies retroactively to nonfinal cases.

Authority:

In re E.P. (2023) 89 Cal.App.5th 409, 416

In re S.S. (2023) 89 Cal.App.5th 1277, 1284

Eleventh Holding:

A person who is eligible to have his case proceed in juvenile court may knowingly waive this statutory right. A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege.

A criminal defendant cannot be deemed to have waived or forfeited a legal argument that was not recognized at the time of his trial. Even where a right may be waived, a waiver generally does not include protections that were not reasonably available or contemplated at the time.

The matter must be remanded to the juvenile court to conduct a transfer hearing.

Authority:

People v. Nguyen (1990) 222 Cal.App.3d 1612, 1620

People v. Johnson (2020) 45 Cal.App.5th 123, 132 [legal counsel may waive the right to a juvenile fitness hearing for an accused who has reached adulthood]

Johnson v. Zerbst (1938) 304 U.S. 458, 464

People v. Cardenas (2007) 155 Cal.App.4th 1468, 1479

People v. French (2008) 43 Cal.4th 36, 48 [in a negotiated plea, waiver of right to jury trial on charged offenses does not extend to proof of aggravating circumstances when no such jury right was recognized at time of plea]

People v. Panizzon (1996) 13 Cal.4th 68, 85 [general waiver of right to appeal from a negotiated plea agreement will not bar the appeal of sentencing errors occurring subsequent to the plea]
People v. Becerra (2019) 32 Cal.App.5th 178, 188 [defendant cannot knowingly and intelligently waive right to appeal an issue not contemplated at time of waiver].

 

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

Case 000922

Posted on by Gary McCurdy

Error and/or relief

There was insufficient evidence to support the juvenile court’s finding that the minor committed count 1 (conspiracy to commit assault with a firearm).

First Holding:

Conspiracy is an inchoate crime. A conviction of conspiracy requires proof that the defendant and another person had the specific intent to agree or conspire to commit an offense, as well as the specific intent to commit the elements of that offense, together with proof of the commission of an overt act by one or more of the parties to such agreement in furtherance of the conspiracy.

Criminal conspiracy is an offense distinct from the actual commission of a criminal offense that is the object of the conspiracy. Other than the agreement, the only act required is an overt act by any of the conspirators, not necessarily the defendant, and that overt act need not itself be criminal. Conspiracy thus criminalizes preparatory conduct at an earlier stage than an attempt to commit a crime.

As an inchoate crime, conspiracy fixes the point of legal intervention at the time of agreement to commit a crime, and thus reaches further back into preparatory conduct than attempt. An overt act in furtherance of a conspiracy must occur after the agreement but before the completed offense.

Authority:

People v. Smith (2014) 60 Cal.4th 603, 616, superseded on other grounds in People v. Carr (2023) 90 Cal.App.5th 136, 142

People v. Zamora (1976) 18 Cal.3d 538, 560, overruled in part on other grounds in Cowan v. Superior Court (1996) 14 Cal.4th 367, 376

People v. Brown (1991) 226 Cal.App.3d 1361, 1368

Second Holding:

Conspiracy requires specific intent to commit the target offense. The mental state elements of conspiracy require the prosecution to demonstrate the defendant had the specific intent both to agree to the conspiracy and to commit the object offense.

The two elements are distinct, but closely related. In some cases, it may be useful to distinguish between the two elements, especially when evidence of one is direct and the other is circumstantial. But in many cases, proof of the two specific intent elements will overlap.

Together, these two specific intent elements play a critical role in a conspiracy prosecution: Proof of these elements is what separates a coconspirator from a mere bystander to the crime.

Authority:

People v. Ware (2022) 14 Cal.5th 151, 164

People v. Swain (1996) 12 Cal.4th 593, 600

People v. Marsh (1962) 58 Cal.2d 732, 742–744 [focusing on intent to commit a crime where there was clear evidence of intent to agree]

People v. Beck and Cruz (2019) 8 Cal.5th 548, 629 [focusing on intent to agree where there was clear evidence of intent to commit a crime]

Third Holding:

The First Amendment forbids punishing a person merely for associating with others—even as part of a group premised on a violent aim. Because the law will not recognize a rule of guilt by association, we insist on proof of a defendant’s knowledge of, and specific intent to further, the group’s unlawful ends.

Authority:

Scales v. United States (1961) 367 U.S. 203

Elfbrandt v. Russell (1966) 384 U.S. 11, 19 [A law that applies to membership without the specific intent to further the illegal aims of the organization rests on the doctrine of guilt by association, which has no place here]

Holder v. Humanitarian Law Project (2010) 561 U.S. 1, 18 [noting that mere membership in, or association with, an organization that advocates terrorism cannot itself be criminalized]

Fourth Holding:

To prove conspiracy, the prosecution need not establish the intent to participate in every act necessary to complete the object offense. But ultimately, to connect any individual to the charged conspiracy, the prosecution must at least establish that the individual specifically intended to agree to commit the criminal offense and to play at least some role in achieving it.

Authority:

Salinas v. United States (1997) 522 U.S. 52, 63 [A conspiracy may exist even if a conspirator does not agree to commit or facilitate each and every part of the substantive offense]

People v. Ware (2022) 14 Cal.5th 151, 166-167

Fifth Holding:

We must review the entire record in the light most favorable to the judgment, and then determine whether it contains evidence that is reasonable, credible, and of solid value such that a reasonable jury could have found the defendant guilty beyond a reasonable doubt. Sufficiency determinations necessarily take account of the standard of proof that applied before the trial court.

That is why in criminal cases we must ensure the record demonstrates substantial evidence to establish guilt beyond a reasonable doubt.

Authority:

People v. Ware (2022) 14 Cal.5th 151, 167

Sixth Holding:

We must presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends.

But we cannot, however, venture beyond the evidence presented at trial, and may consider only those inferences that are reasonably supported by the record.

A reasonable inference may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work. It must logically flow from other facts established in the action, and it cannot be based entirely on the suspicions of the officers involved in the case and the conjecture of the prosecution.

In sum, after considering the record in its entirety, we conclude that the evidence presented at the contested jurisdiction hearing is insufficient to show that minor had the requisite specific intent to participate in a conspiracy to commit the target offense of assault with a firearm.

(Gary note: I omitted the recitation of facts the court relied on to reach its conclusion after applying the various principles set forth in the opinion and this summary.)

Authority:

People v. Ware (2022) 14 Cal.5th 151, 167-168

Appellate Principles, Discretion, Racial Justice Act, Standard of review

Case 000916

Posted on by Gary McCurdy

Error and/or relief

The defendant filed a habeas corpus petition in the superior court, alleging that his 1992 convictions for first degree murder and robbery were obtained “on the basis of race, ethnicity, or national origin” in violation of the California Racial Justice Act of 2020 (RJA). He also requested, pursuant to the RJA, appointment of counsel and disclosure of evidence to support his claims.

The trial court denied the discovery request and the habeas petition, concluding that the defendant failed to establish a prima facie case for relief under the RJA.

The court erred. We grant the petition and issue a writ of mandate directing the trial court to vacate its order denying the habeas petition, appoint counsel for the defendant, and conduct a new hearing to reconsider his discovery request in a manner consistent with this opinion.

(Gary note: The court outlined in several paragraphs the specific allegations the defendant set forth in his petition that, if true, arguably demonstrated that his arrest and prosecution were affected by factors disallowed by the RJA. As these summaries are designed to highlight principles and the cases or statutes supporting the principles, I am not going to include the facts of the case on which the appellate court concluded that the defendant had demonstrated a sufficient showing to warrant appointment of counsel and discovery.)

First Holding:

Ordinarily, mandate does not lie to correct judicial errors by the superior court in habeas corpus proceedings.

However, where, as here, the trial court failed to perform its required duty to conduct an independent assessment of whether the petitioner was entitled to have counsel appointed under newly adopted procedures enacted by the Legislature, then mandate may be used to compel the performance of that duty.

Authority:

McIntosh v. Superior Court (2025) 110 Cal.App.5th 33, 46-47

Second Holding:

Several have concluded that writ review of the trial court’s discovery rulings in RJA cases is appropriate because such rulings involve novel legal issues of widespread interest.

The RJA is a recent legislation that has been amended multiple times since its inception, and although its command is simple, its implementation is somewhat complex.

We therefore agree with the court in Young that exercising our discretion to review discovery rulings under the RJA is appropriate to provide general guidelines for future cases.

(Gary note:  I find that last sentence regarding guidelines for future cases a bit amusing, because this is an unpublished opinion, and the only “future case” it will ever affect is THIS particular defendant’s instant case.  But hey.  Maybe the “to publish or not to publish” colloquy occurred after the opinion was written.)

Authority:

Young v. Superior Court (2022) 79 Cal.App.5th 138, 147, 156

Gonzales v. Superior Court (2024) 108 Cal.App.5th Supp. 36, 53-54

McDaniel v. Superior Court (2025) 111 Cal.App.5th 228, 238

Third Holding:

Because management of discovery lies within the sound discretion of the trial court, we review discovery rulings for abuse of discretion. We review the factual underpinnings of a discretionary determination for substantial evidence, but where such a determination rests on incorrect legal premises, our review is de novo.

A discretionary order based on an application of improper criteria or incorrect legal assumptions is not an exercise of informed discretion and is subject to reversal.

Authority:

Young v. Superior Court (2022) 79 Cal.App.5th 138, 156

Gonzales v. Superior Court (2024) 108 Cal.App.5th Supp. 36, 55

Fourth Holding:

Effective January 1, 2021, the Legislature enacted the RJA (AB 2542 (2019–2020 Reg. Sess.)) to eliminate racial bias from California’s criminal justice system; to ensure that race plays no role at all in seeking or obtaining convictions or in sentencing; and to ensure that individuals have access to all relevant evidence, including statistical evidence, regarding potential discrimination in seeking or obtaining convictions or imposing sentences.

To achieve these objectives, the RJA added and amended Penal Code sections to allow defendants whose judgments are final or who are no longer in custody, respectively, to seek relief for RJA violations.

Authority:

PEN 745

PEN 1473

PEN 1473.7

In re Lynex (2026) 118 Cal.App.5th 756, 767

People v. Wilson (2024) 16 Cal.5th 874, 945

Fifth Holding:

The RJA provides that the state shall not seek or obtain a criminal conviction or seek, obtain, or impose a sentence on the basis of race, ethnicity, or national origin. The statute further sets forth four categories of conduct, any of which, if proved, is enough to establish a violation of the RJA.

Authority:

PEN 745(a)

Sixth Holding:

The court shall appoint counsel if the petitioner cannot afford counsel and the petition alleges facts that would establish a violation of section 745(a). In AB 1071, the Legislature reaffirmed that this threshold is extremely low. (Stats. 2025, ch. 721, sec. 1, subd. (b).)

AB 1071 states that courts have imposed on RJA petitioners higher burdens than the Legislature intended to meet the threshold to secure counsel and denied counsel to litigants raising RJA claims far more than they have appointed counsel.

The new legislation clarifies that the court shall appoint counsel to all indigent postconviction litigants who allege a plausible claim of an RJA violation, which does not require a prima facie showing and should be construed as a minimal pleading requirement.

Authority:

PEN 1473(e)(5)

McIntosh v. Superior Court (2025) 110 Cal.App.5th 33

Seventh Holding:

The RJA defines a prima facie showing to mean that the defendant produces facts that, if true, establish that there is a substantial likelihood that a violation of the RJA occurred.

By contrast, to be entitled to counsel in RJA habeas proceedings, petitioners are required only to allege facts that would establish a violation of the RJA.

Authority:

PEN 745(h)(2)

McIntosh v. Superior Court (2025) 110 Cal.App.5th 33, 45

Eighth Holding:

Regarding the showing necessary for discovery, a defendant is required only to advance a plausible factual foundation, based on specific facts, that a violation of the RJA could or might have occurred in his case.

The burden at the discovery stage is a good cause showing, the burden at the prima facie stage is higher, and the burden at the evidentiary hearing is higher still—proof of an RJA violation by a preponderance of the evidence.

As the least onerous of the statute’s burdens of proof, the plausible justification standard should not be difficult to meet. Where the defendant makes a showing of plausible justification that there was or could have been a violation of the RJA, thus triggering access to all relevant evidence concerning a potential violation of section 745(a), it will likely be an abuse of discretion to totally foreclose discovery.

Authority:

PEN 745(c), (d), and (e)

Young v. Superior Court (2022) 79 Cal.App.5th 138, 159, 168-169

Gonzales v. Superior Court (2024) 108 Cal.App.5th Supp. 36, 61

Ninth Holding:

At the discovery stage, as at the prima facie stage, the court should not weigh the evidence or make credibility determinations, except in the rare case where the record irrefutably establishes that the allegations are false.

Authority:

Finley v. Superior Court (2023) 95 Cal.App.5th 12, 23–24

McDaniel v. Superior Court (2025) 111 Cal.App.5th 228, 246, fn. 8 [A trial court’s review of supporting evidence at the discovery stage, which imposes even a lower burden of proof on defendants than the prima facie stage, must be more lenient]

Tenth Holding:

Although the defendant has offered sufficient evidence to demonstrate a plausible factual foundation for discovery under the RJA, a question remains regarding the appropriate scope of his request.

When determining if a petitioner is entitled to the requested discovery, the court must still consider and balance the so-called Alhambra factors:

(1) whether the material requested is adequately described;

(2) whether the requested material is reasonably available to the governmental entity from which it is sought (and not readily available to the defendant from other sources);

(3) whether production of the records containing the requested information would violate (i) third party confidentiality or privacy rights or (ii) any protected governmental interest;

(4) whether the defendant has acted in a timely manner;

(5) whether the time required to produce the requested information will necessitate an unreasonable delay of the defendant’s trial; and

(6) whether the production of the records containing the requested information would place an unreasonable burden on the governmental entity involved.

Authority:

City of Alhambra v. Superior Court (1988) 205 Cal.App.3d 1118, 1134

Eleventh Holding:

In addition, the court must consider whether the requests for disclosure may give rise to relevant evidence, meaning that the court must determine whether they are reasonably calculated to lead to discovery of admissible evidence probative of a section 745(a) violation.

The trial courts in exercising their discretion should keep in mind that the Legislature has suggested that, where possible, the courts should impose partial limitations rather than outright denial of discovery.

Authority:

McDaniel v. Superior Court (2025) 111 Cal.App.5th 228, 248

Williams v. Superior Court (2017) 3 Cal.5th 531, 559

Discretion, Sentencing

Case 000915

Posted on by Gary McCurdy

Error and/or relief

The trial court’s finding that he was unsuitable for diversion is unsupported by substantial evidence. We direct the trial court to vacate the order denying the defendant’s motion for mental health diversion and to enter a new order granting the motion unless there is evidence of changed circumstances that provide a basis for denying the motion consistent with this opinion. If the court finds changed circumstances, it shall hold a further hearing on the defendant’s motion for mental health diversion.

First Holding:

Section 1001.36 gives trial courts the discretion to grant pretrial diversion for individuals suffering from certain mental health disorders. The primary purposes of the legislation are to keep people with mental disorders from entering and reentering the criminal justice system while protecting public safety, to give counties discretion in developing and implementing diversion across a continuum of care settings, and to provide mental health rehabilitative services.

Authority:

PEN 1001.36

PEN 1001.35(a)-(c)

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

People v. Doron (2023) 95 Cal.App.5th 1, 7

Second Holding:

Section 1001.36(b) provides that a defendant is eligible for pretrial diversion if two criteria are met.

First, the defendant has been diagnosed with a mental disorder, such as the one with which defendant was diagnosed, within the last five years by a qualified mental health expert.

Second, the defendant’s mental disorder was a significant factor in the commission of the charged offense.

If the defendant has been diagnosed with a mental disorder, the court shall find that the defendant’s mental disorder was a significant factor in the commission of the offense unless there is clear and convincing evidence that it was not a motivating factor, causal factor, or contributing factor to the defendant’s involvement in the alleged offense.

Authority:

PEN 1001.36

Third Holding:

If a defendant meets these eligibility requirements, the defendant is suitable for pretrial diversion if four criteria are satisfied:

(1) In the opinion of a qualified mental health expert, the defendant’s symptoms of the mental disorder causing, contributing to, or motivating the criminal behavior would respond to mental health treatment.

(2) The defendant consents to diversion and waives the defendant’s right to a speedy trial.

(3) The defendant agrees to comply with treatment as a condition of diversion.

(4) 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(c)

Fourth Holding:

The proper inquiry for determining whether the fourth criterion is satisfied is whether there is an unreasonable risk the defendant will commit a super strike if treated in the community.

Super strikes include sexually violent offenses, child molestation, homicide, attempted homicide, solicitation to commit murder, assault with a machine gun on a peace officer or fire fighter, possession of a weapon of mass destruction, or a violent felony punishable by life imprisonment or death.

Authority:

PEN 1001.36(c)(4)

PEN 1170.18(c)

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

Fifth Holding:

Section 1001.36 provides the trial court with discretion to deny mental health diversion even if it finds a defendant meets the statutory eligibility and suitability criteria. Such discretion is commonly referred to as a court’s residual discretion.

Where the court chooses to exercise this residual discretion to deny diversion, its statement of reasons should reflect consideration of the underlying purposes of the statute and explain why diversion would not meet those goals.

Authority:

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

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

Sixth Holding:

We review a trial court’s ruling on a petition for pretrial mental health diversion for 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. Whitmill (2022) 86 Cal.App.5th 1138, 1147

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

Seventh Holding:

(Gary note: The court then described facts specific to this defendant this case that led it to the conclusion that the court abused its discretion in concluding the defendant posed an unreasonable risk of danger to the public safety. One of the elements of the trial court’s concern was the defendant’s need for medication. I have listed the authority cited by the court on that point, but I see no value in detailing the facts specific to this case.)

Authority:

Siam v. Superior Court (2026) 118 Cal.App.5th 67, 84, 87 [holding no substantial evidence supported denying diversion even though there were two instances of defendant declining treatment and the offense took place while defendant was being treated pursuant to diversion]

Vaughn v. Superior Court (2024) 105 Cal.App.5th 124, 136−137 [holding no substantial evidence that defendant was unsuitable for diversion even though defendant had sustained periods of psychotropic medication non-compliance and resisted talking about his mental health]

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

Case 000908

Posted on by Gary McCurdy

Error and/or relief

The defendant was convicted of three charges, including two counts of conspiracy. Under the circumstances in this case, he could be convicted of only a single count of conspiracy. We reverse the conviction on count 3.

First Holding:

The defendant was charged with explosion causing mayhem and great bodily injury in count 1, conspiracy to discharge a firearm from a motor vehicle in count 2), and conspiracy to commit assault with a firearm in count 3. Both conspiracy convictions both convictions arose from a single agreement and the single criminal objective of shooting the victim.

A defendant may be convicted of only a single count of conspiracy based on a single agreement. It is well settled that the essence of the crime of conspiracy is the agreement, and thus it is the number of the agreements (not the number of the victims or number of statutes violated) that determine the number of the conspiracies. The gist of the crime of conspiracy is the agreement or confederation of the conspirators to commit one or more unlawful acts. The conspiracy is the crime, and that is one, however diverse its objects.

Authority:

People v. Meneses (2008) 165 Cal.App.4th 1648, 1669

People v. Lopez (1994) 21 Cal.App.4th 1551, 1557 [One agreement gives rise to only a single offense, despite any multiplicity of objects]

Braverman v. United States (1942) 317 U.S. 49, 53

Second Holding:

Where a defendant argues the evidence was insufficient to support a conviction, we review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.

We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. This standard applies whether direct or circumstantial evidence is involved. The evidence presented in this case supports only that there was a single agreement to commit one shooting of the victim.

Authority:

People v. Prince (2007) 40 Cal.4th 1179, 1251

Third Holding:

That the single shooting may have violated two separate criminal statutes is immaterial.

Authority:

People v. Patrick (1981) 126 Cal.App.3d 952, 965 [noting that a single agreement to commit acts which, if completed, would constitute more than one substantive crime, is but a single conspiracy]

People v. Meneses (2008) 165 Cal.App.4th 1648, 1669 [Whether the object of a single agreement is to commit one or many crimes, it is in either case that agreement which constitutes the conspiracy which the statute punishes]

Fourth Holding:

If the felony is conspiracy to commit two or more felonies which have different punishments and the commission of those felonies constitute but one offense of conspiracy, the penalty shall be that prescribed for the felony which has the greater maximum term. Here, because the maximum punishment for count 2 is seven years and the maximum punishment for count 3 is four years , count 3, having the lesser maximum term, must be reversed.

Authority:

PEN 182(a)