Tag Archives: Standard of review

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

Immigration, Standard of review

Case 001126

Posted on by Gary McCurdy

Error and/or relief

The defendant’s moved to vacate his guilty plea under section 1473.7, asserting a lack of a knowing and intelligent understanding of the immigration consequences. The court erred in denying the motion, having concluded that, while he did not have an adequate understanding, there was no prejudice. We therefore reverse and remand with directions to grant the motion.

First Holding:

Section 1473.7 enables a defendant who is no longer in criminal custody to bring a motion to vacate a conviction or sentence on grounds 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.

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.

Authority:

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

Second Holding:

The independent standard of review applies to an appeal of an order denying a section 1473.7 motion. Under independent review, an appellate court exercises its independent judgment to determine whether the facts satisfy the rule of law. Factual findings and credibility determinations based on the trial court’s personal observation of witnesses are entitled to deference.

However, when, as here, facts derive entirely from written declarations and other documents, no such deference is warranted because the trial court and the appellate court are in the same position with respect to assessing the evidence. Ultimately it is for the appellate court to decide, based on its independent judgment, whether the facts establish prejudice under section 1473.7.

Authority:

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

People v. Avena (2026) 119 Cal.App.5th 624, 632

People v. Garcia (2022) 79 Cal.App.5th 1059, 1065

Third Holding:

In determining whether a defendant has established error under section 1473.7, the court’s focus is on the defendant’s subjective understanding of immigration consequences at the time of entering a guilty plea. A defendant may establish error by showing the defendant entered a guilty plea without a meaningful understanding of the actual or potential adverse consequences of the resulting conviction or sentence.

The defendant alternatively may show that counsel provided incomplete or inaccurate advice about the plea’s immigration consequences or did not effectively communicate the immigration consequences, so the defendant entered the plea without a meaningful understanding of them.

Authority:

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

People v. Bravo (2021) 69 Cal.App.5th 1063, 1073 [Defendants must be advised that they will be deported, excluded, and denied naturalization as a mandatory consequence of the conviction.]

People v. Padron (2025) 109 Cal.App.5th 950, 954–955, 959, 963 [granting the defendant’s section 1473.7 motion in part based on his mental health issues]

Fourth Holding:

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

A reasonable probability does not mean more likely than not. Instead, it means merely a reasonable chance, which is more than an abstract possibility. In other words, a reasonable probability is a probability sufficient to undermine confidence in the outcome.

Authority:

People v. Hernandez (2026) 20 Cal.5th 598, 626

Fifth Holding:

We consider the totality of the circumstances in determining whether there is a reasonable probability the defendant would not have pleaded guilty had he meaningfully understood its immigration consequences.

A defendant’s assertion he would not have entered the plea must be corroborated by objective evidence. Objective evidence may be presented through a defendant’s declaration or testimony, declarations or testimony of others, or documentary evidence, including the record of the underlying criminal proceedings.

Objective evidence includes evidence of:

(1) the defendant’s ties to the United States;

(2) the importance the defendant placed on avoiding deportation;

(3) the defendant’s priorities in seeking a plea bargain;

(4) whether the defendant had reason to believe an immigration-neutral negotiated disposition was possible;

(5) the probability the defendant would have obtained a more favorable outcome by rejecting the plea agreement; and

(6) the difference between the bargained-for term and the likely term if the defendant were convicted at trial.

These factors are not exhaustive and no single one is either required for relief or dispositive.

(Gary note: The appellate court dove extensively into information about the defendant to conclude that he was not properly informed and that he did not understand the consequences and that he suffered prejudice. Those details are omitted here because they serve no value as authority.)

Authority:

People v. Hernandez (2026) 20 Cal.5th 598, 626-627

Sixth Holding:

We do not decide whether the defendant would have had reason to believe an immigration-neutral disposition was possible. Because the test for prejudice considers what the defendant would have done, not what the effect of that decision would have been, a court may not deny relief simply by finding it not reasonably probable the defendant by rejecting the plea would have obtained a more favorable outcome.

Where avoiding deportation was the deciding factor for a defendant, there is a reasonable probability that such a defendant would have rejected any plea leading to deportation—even if it shaved off prison time—in favor of throwing a “Hail Mary” at trial.

A defendant’s stated interests during plea negotiations are relevant only to the extent that they were based on a full and accurate understanding of the immigration consequences at issue. Consequently, a defendant’s stated interests during plea bargaining can hardly serve as evidence that he didn’t care about immigration consequences when it is undisputed that the defendant was not properly advised.

Authority:

People v. Camacho (2019) 32 Cal.App.5th 998, 1010

People v. Benitez-Torres (2025) 112 Cal.App.5th 1252, 1263, 1270

People v. Manzanilla (2022) 80 Cal.App.5th 891, 912

Amelioration, Elements of crime, Standard of review, Sufficiency of and substantial evidence, Vicarious liability

Case 001124

Posted on by Gary McCurdy

Error and/or relief

We reverse the denial of the petition for recall of sentence under section 1172.6 and direct the trial court to consider the defendant’s youth at the time of the killing as a relevant factor in determining whether the defendant formed the requisite mental state to be convicted of aiding and abetting an implied malice murder.

First Holding:

The trial court found that the defendant directly aided and abetted an implied malice murder. To satisfy the actus reus for that theory of liability, the aider and abettor must, by words or conduct, aid the commission of the life-endangering act, not the result of that act. The relevant act is the act that proximately causes death.

The required mens rea is knowledge that the perpetrator intended to commit the act, intent to aid the perpetrator in the commission of the act, knowledge that the act is dangerous to human life, and acting in conscious disregard for human life.

Authority:

People v. Reyes (2023) 14 Cal.5th 981, 991

Second Holding:

Based on our review of the trial court’s written order denying resentencing, we conclude the trial court understood and applied the elements of directly aiding and abetting an implied malice murder. We therefore review its decision for substantial evidence.

In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.

We do not reweigh evidence or second-guess credibility determinations. We presume the existence of every fact the trier of fact could reasonably deduce from the evidence to support the judgment. To overturn a conviction based on insufficient evidence, it must clearly appear that upon no hypothesis whatever is there sufficient substantial evidence to support it.

Authority:

People v. Bolin (1998) 18 Cal.4th 297, 331

People v. Ramirez (2022) 13 Cal.5th 997, 1118

People v. Redmond (1969) 71 Cal.2d 745, 755

Third Holding:

The defendant asserts that the trial court failed to consider his youth when deciding the resentencing petition. He did not raise the issue in the trial court, arguably forfeiting the issue. But we agree that considering the issue on the merits is appropriate where this emerging area of the law was only developing at the time the trial court denied the petition.

In Pittman, for example, the defendant argued for the first time on appeal after the denial of resentencing that his youth (21 years old at the time of the offense) was relevant to whether he acted with implied malice and therefore could be found guilty of second degree murder. The appellate court observed that the policy interests underlying the felony-murder cases—that youth is relevant to a criminal defendant’s ability to perceive risk and consequences, and therefore to the level of culpability—apply equally in the context of implied malice murder.

The Pittman court further concluded that failure to consider Pittman’s youth was not harmless, given trial evidence of Pittman and his peers acting impulsively and under the influence of transient rashness.

Authority:

People v. Pittman (2023) 96 Cal.App.5th 400, 416, 418 [Cases discussing the role of youth in relation to criminal culpability stress two areas: youthful offenders’ relative impulsivity and their vulnerability to peer pressure]

Fourth Holding:

The defendant was 20 years old at the time of the crime. Impulsivity and vulnerability to peer pressure may have contributed to his participation in the unplanned group attack of a rival gang member. We find it is reasonably probable a more favorable result would have been reached on the defendant’s petition had the trial court considered his youth.

Authority:

People v. Pittman (2023) 96 Cal.App.5th 400, 417 (applying the Watson standard)

People v. Watson (1956) 46 Cal.2d 818

Discretion, Duty of the court, Standard of review, Sufficiency of and substantial evidence

Case 001123

Posted on by Gary McCurdy

Error and/or relief

The court erred in denying the defendant’s request for mental health diversion after considering only one of the two available medical reports before determining that the defendant presented an unreasonable risk of danger to public safety within the meaning of section 1170.18.

(Gary note: as I explain below in a note to the Third Holding, that standard is slated to change 1/1/27.)

First Holding:

Section 1001.36 gives trial courts discretion to grant pretrial diversion for defendants with qualifying mental health disorders. The court may postpone prosecution to allow the defendant to receive mental health treatment. The Legislature intended the mental health diversion program to apply as broadly as possible.

Authority:

PEN 1001.36

People v. Frahs (2020) 9 Cal.5th 618, 626, 632

People v. Tourville (2026) 120 Cal.App.5th 439, 451

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

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

Second Holding:

Defendants requesting mental health diversion have the burden to make a prima facie showing that they will meet the minimum requirements of eligibility for diversion and that they and the offense are suitable for diversion.

A defendant is eligible under section 1001.36(b) if:

(1) a qualified mental health expert has diagnosed the defendant within the last five years with a mental disorder identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders (with limited exceptions); and

(2) the defendant’s mental disorder was a significant factor in the charged offense.

Authority:

PEN 1001.36(b)

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

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

Third Holding:

A defendant is suitable for diversion under section 1001.36(c) if the defendant satisfies four requirements:

(1) a qualified mental health expert concludes the defendant’s mental disorder would respond to treatment;

(2) the defendant consents to diversion and agrees to waive his or her speedy trial rights;

(3) the defendant agrees to comply with treatment; and

(4) if treated in the community, the defendant will not pose an “unreasonable risk of danger to public safety,” as defined in section 1170.18.

(Gary note: Effective 1/1/2027, the language in 1001.36(c)(4) regarding an unreasonable risk of danger to public safety (as defined in section 1170.18) changed to something much less favorable for seekers of diversion. AB 46 (enacted as Chapter 18) and AB 2273 (enacted as Chapter 298) amended section 1001.36 by changing and renumbering the “public safety” subdivision language to 1001.36(c)(D). Instead of incorporating the “superstrike” language of Penal Code section 1170.18, the language effective 1/1/27 will read “The defendant will not pose a substantial and undue risk to the physical safety of another person, if treated in the community. …”)

Authority:

PEN 1001.36(c)

People v. Tourville (2026) 120 Cal.App.5th 439, 458

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

Fourth Holding:

Even if the defendant makes a prima facie showing he or she meets the statutory requirements, the trial court has residual discretion to deny diversion. The court must exercise its residual discretion consistent with the principles and purpose of the mental health diversion statutes.

Authority:

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

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

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

Fifth Holding:

We review the trial court’s order granting or denying a request for mental health diversion for abuse of discretion. The 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.

Authority:

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

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

(Gary note: The appellate court described confusion in the record as to whether the trial court had the second mental health report available or read it. The trial court denied the request for diversion on finding that the defendant posed an unreasonable danger to public safety as defined in section 1170.18. The appellate court remanded for the trial court to review that second report before making a determination on whether the defendant poses a reasonable risk of committing a so-called superstrike.

(As I noted above, however, that bar is lowered as of 1/1/27. Of course, the trial court should still consider the second report. The question I have and do not know the answer to is whether the defendant is entitled to the heightened standard as it existed at the time he made his request for diversion and as it stands as of the writing of this summary, or whether any delay in the new proceedings past 2026 will subject him to evaluation as a risk under the new lower bar. Was that a question? Hmmm. You get my drift, though, right?)

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

Case 001116

Posted on by Gary McCurdy

Error and/or relief

On resentencing under section 1172.75, the court erred in failing to consider whether the criminal gang activity enhancements were still valid with the passage of AB 333 after the initial conviction and sentencing.

First Holding:

Effective January 1, 2022, B333 amended section 186.22 to impose new substantive and procedural requirements for gang allegations and the substantive offense of gang participation.

First, it narrowed the definition of a criminal street gang to require that any gang be an ongoing, organized association or group of three or more persons.

Second, whereas section 186.22, former subdivision (f) required only that a gang’s members individually or collectively engage in a pattern of criminal activity in order to constitute a criminal street gang, AB 333 requires that any such pattern have been collectively engaged in by members of the gang.

Third, AB 333 also narrowed the definition of a pattern of criminal activity by requiring that (1) the last offense used to show a pattern of criminal gang activity occurred within three years of the date that the currently charged offense is alleged to have been committed; (2) the offenses were committed by two or more gang members, as opposed to just persons; (3) the offenses commonly benefitted a criminal street gang; and (4) the offenses establishing a pattern of gang activity must be ones other than the currently charged offense.

Fourth, AB 333 narrowed what it means for an offense to have commonly benefitted a street gang, requiring that any common benefit be more than reputational.

Authority:

People v. E.H. (2022) 75 Cal.App.5th 467, 477

People v. Tran (2022) 13 Cal.5th 1169, 1206

Second Holding:

Under Estrada, in the absence of a contrary indication of legislative intent, legislation that ameliorates punishment applies to all cases that are not yet final as of the legislation’s effective date. When a substantive change occurs in the elements of an offense and the jury is not instructed as to the proper elements, the omission implicates the defendant’s right to a jury trial under the Sixth Amendment, and reversal is required unless it appears beyond a reasonable doubt that the jury verdict would have been the same in the absence of the error.

AB 333 applies retroactively in this case. AB 333 added new elements to the substantive offense and enhancements in section 186.22.

Authority:

In re Estrada (1965) 63 Cal.2d 740

People v. Tran (2022) 13 Cal.5th 1169, 1206-1207

Third Holding:

When the defendant’s sentence was recalled, his judgments became nonfinal and “the trial court regained the jurisdiction and duty to consider what punishment was appropriate for him, and [Guzman] regained the right to appeal whatever new sentence was imposed. His judgments thus became nonfinal, and it remains nonfinal in its present posture. His judgments became nonfinal for Estrada purposes and the trial court erred by failing to address the amendments that AB 333 made to the gang enhancement statute.

Authority:

People v. Padilla (2022) 13 Cal.5th 152, 161-162

People v. Lopez (2025) 17 Cal.5th 388, 400

People v. Salgado (2022) 82 Cal.App.5th 376, 380-381 [the defendant was entitled to benefit of AB 333 because his judgment was no longer final following recall and resentencing under section 1170(d)]

Fourth Holding:

The proper remedy in this case is to remand for the trial court to determine whether the People can establish beyond a reasonable doubt that the error was harmless.

Authority:

People v. Copper (2023) 14 Cal.5th 735, 738, 742-744, 746 [applying Chapman to conclude that lack of jury instruction on AB 333’s new elements was not harmless beyond a reasonable doubt]

People v. E.H. (2022) 75 Cal.App.5th 467, 480 [The proper remedy for this type of failure of proof—where newly required elements were never tried to the jury—is to remand and give the People an opportunity to retry the affected charges]

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

Fifth Holding:

The defendant concedes that retrial is not automatic and requests that we assess the trial court’s error instead of remanding to the trial court. Although some appellate courts have engaged in harmless error analysis in similar situations (e.g., Sek), we conclude that in this case, the trial court is well-situated to make the prejudice determination.

Authority:

People v. Sek (2022) 74 Cal.App.5th 657, 668-669

Sixth Holding:

Regardless of the outcome on the question of AB 333, the defendant is entitled to full resentencing on remand.

Authority:

People v. Lopez (2025) 17 Cal.5th 388, 392-393 [a criminal case in which the sentence is not yet final, including one in which an appellate court has affirmed the conviction and remanded for reconsideration of sentencing-related issues, is not final for purposes of Estrada, and the benefits of supervening ameliorative legislation apply retroactively]

People v. Valenzuela (2019) 7 Cal.5th 415, 424-425 [the full resentencing rule allows a court to revisit all prior sentencing decisions when resentencing a defendant]