Tag Archives: Standard of review

Appellate Principles, Effective assistance of counsel, Pleading, Sentencing

Case 000795

Posted on by Gary McCurdy

Error and/or relief

The court erroneously imposed a 10-year upper term firearm enhancement, although the jury was not asked to consider, and did not render a finding, that defendant personally used a firearm in the commission of the murder. The 10-year firearm enhancement is unauthorized. We therefore strike the enhancement and affirm the judgment as modified.

Holding:

The personal firearm use allegation under section 12022.5(a), was pled only as to the codefendant. No firearm allegation was alleged as to defendant under any statute. Nevertheless, at defendant’s sentencing hearing, the trial court imposed a 10-year upper term enhancement for personal firearm use under section 12022.5. No objection was raised in the trial court to the imposition of this enhancement, and no contention was raised on appeal regarding the sentencing error. The 10-year firearm use enhancement is unauthorized and must be stricken.

(Gary note:  There was no discussion of effective assistance of counsel in the opinion.  It relied solely on the unauthorized nature of the sentence.  But I have “tagged” this as ineffective assistance of counsel.  How could counsel have let his or her client receive a 10-year enhancement that was not charged against the client?  Yes, it was against the co-defendant, but I’m not sure it takes a Monday morning quarterback to suggest that one’s client should not be sentenced on a different defendant’s charges.  If the co-defendant had been charged with murder, and my client with only burglary, I think I’d notice if my client was sentenced to a life term for my co-defendant’s murder conviction.  Just sayin’, I guess.)

Authority:

People v. Scott (1994) 9 Cal.4th 331, 354

Duty of the court, Sentencing, Standard of review

Case 000794

Posted on by Gary McCurdy

Error and/or relief

The court erred at the recall of sentence hearing under section 1172.6 when it refused to review the transcript of the district attorney’s summation at the original trial. We reverse the trial court’s order and remand the matter for the court to consider the record of conviction in its entirety.

First Holding:

Effective January 1, 2019, SB 1437 added what is now section 1172.6 and made other amendments to the Penal Code that eliminated the natural and probable consequences doctrine and limited the scope of liability that could be imposed under the felony murder theory.

The purpose of this legislation was to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.

Outside of the felony-murder rule, a conviction for murder requires that a person act with malice aforethought. A person’s culpability for murder must be premised upon that person’s own actions and subjective mens rea.

Authority:

People v. Curiel (2023) 15 Cal.5th 433, 448

Second Holding:

Effective January 1, 2022, SB 775 further limited the theories under which a defendant could be prosecuted to better reflect this purpose.

As a result, section 1172.6(a) now provides that a person convicted of felony murder or murder under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person’s participation in a crime may 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 when all of the following conditions apply:

(1) A complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of felony murder, murder under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person’s participation in a crime;

(2) The petitioner was convicted of murder following a trial at which the petitioner could have been convicted of murder;

(3) The petitioner could not presently be convicted of murder because of changes to section 188 or 189 made effective January 1, 2019.

Authority:

PEN 1172.6(a)

Third Holding:

The court shall hold a hearing to determine whether the petitioner has made a prima facie case for relief. If the petitioner makes a prima facie showing that the petitioner is entitled to relief, the court shall issue an order to show cause. The parties can, and should, use the record of conviction to aid the trial court in reliably assessing whether a petitioner has made a prima facie case for relief under subdivision (c).

Authority:

PEN 1172.6(c)

People v. Lewis (2021) 11 Cal.5th 952, 972

Fourth Holding:

The prima facie inquiry under subdivision (c) is limited. A court should not reject the petitioner’s factual allegations on credibility grounds without first conducting an evidentiary hearing. In reviewing any part of the record of conviction at this preliminary juncture, a trial court should not engage in factfinding involving the weighing of evidence or the exercise of discretion.

The prima facie bar was intentionally and correctly set very low. At the prima facie stage, a court must accept as true a petitioner’s allegation that he or she could not currently be convicted of a homicide offense because of changes to [s]ection 188 or 189 made effective January 1, 2019, unless the allegation is refuted by the record. And this allegation is not refuted by the record unless the record conclusively establishes every element of the offense.

If the petitioner makes a prima facie showing of eligibility, the trial court must issue an order to show cause and hold an evidentiary hearing.

Authority:

People v. Lewis (2021) 11 Cal.5th 952, 971-972

People v. Curiel (2023) 15 Cal.5th 433, 463

Fifth Holding:

We independently review a trial court’s determination of whether a petitioner has made a prima facie showing.

Authority:

People v. Harden (2022) 81 Cal.App.5th 45, 52

Sixth Holding:

The trial court erred by refusing to consider the prosecutor’s closing argument when determining whether the defendant made a prima facie showing of eligibility for relief.

Authority:

People v. Lopez (2022) 78 Cal.App.5th 1, 13 [record of conviction may include closing arguments of counsel]

People v. Harden (2022) 81 Cal.App.5th 45, 55 [considering counsel’s arguments when determining prima facie eligibility under section 1172.6]

Seventh Holding:

In promulgating SB 775, the Legislature specifically provided relief to persons who may have been convicted under another theory under which malice is imputed to a person based solely on that person’s participation in a crime.

Where the petitioner argues that he or she was convicted under another theory of imputed malice, the absence of natural and probable consequences and felony-murder instructions to the jury alone may not be sufficient to preclude eligibility as a matter of law.

As here, where the petitioner has identified specific portions of the record of conviction in support of the claimed theory of imputed malice, the trial court should consider that record material in the first instance to make its prima facie determination.

We reverse the trial court’s order denying the defendant’s petition for resentencing and remand the cause to the trial court to consider the record of conviction in its entirety.

Authority:

People v. Lopez (2026) 19 Cal.5th 639, 661 [legislature intended SB 1437 to reach beyond felony murder and natural and probable consequences cases]

Fines and fees, Retroactivity, Sentencing, Standard of review, Statutory interpretation

Case 000791

Posted on by Gary McCurdy

Error and/or relief

On resentencing the defendant under section 1172.75, the court reimposed the restitution fine that was ordered at the original sentencing more than 10 years earlier. The restitution fine must be vacated.

First Holding:

Defendant contends the trial court erred by reimposing a restitution fine under section 1202.4(b) because the language of section 1465.9(d) mandates vacating these fines after 10 years. The People disagree and counter defendant’s fines were reimposed at the resentencing hearing, making section 1465.9 inapplicable because 10 years have not elapsed under the statute. We agree with defendant.

Authority:

John v. Superior Court (2016) 63 Cal.4th 91, 95

Second Holding:

Upon the expiration of 10 years after the date of imposition of a restitution fine pursuant to section 1202.4, the balance, including any collection fees, shall be unenforceable and uncollectible and any portion of a judgment imposing those fines shall be vacated.

Authority:

PEN 1465.9(d)

Third Holding:

Trial courts have jurisdiction to modify every aspect of a sentence at a full resentencing hearing, including fines. Here, at resentencing the trial court confirmed and reimposed all previous terms, conditions, fines and fees, and admonishments provided by the court on the day of defendant’s original sentencing. The court clearly intended to reimpose the original restitution fine and not an additional, new obligation under section 1202.4(b).

Authority:

People v. Buycks (2018) 5 Cal.5th 857, 893

People v. Rosas (2010) 191 Cal.App.4th 107, 117

People v. Nilsson (2015) 242 Cal.App.4th 1, 34

Fourth Holding:

As in Salstrom, we find no support for the People’s position that this reimposition restarted section 1465.9’s 10-year clock. The plain language of section 1465.9(d) provides legislative intent to eliminate restitution fines under section 1202.4 after 10 years. Allowing trial courts to reimpose a restitution fine under section 1202.4(b) originally imposed more than 10 years prior could render section 1465.9 effectively meaningless for any defendant who is subject to a full resentencing” or is successful on an appeal or a collateral attack.

Authority:

People v. Salstrom (2025) 117 Cal.App.5th 596, 600, review granted on another issue March 11, 2026, S295038

Discretion, Standard of review

Case 000789

Posted on by Gary McCurdy

Error and/or relief

We conclude the trial court abused its discretion. It failed to follow the governing statute’s directions. Its conclusion that the defendant posed an unreasonable risk to public safety, as defined by section 1001.36(c)(4), was unsupported by substantial evidence. Accordingly, we issue the requested writ of mandate and direct the court to grant the defendant’s motion for mental health diversion.

First Holding:

In 2018, the Legislature enacted section 1001.36 to create a diversion program for criminal defendants with diagnosed mental health disorders. Diversion allows for the suspension of criminal proceedings and potential dismissal of charges upon successful completion of mental health treatment. By its terms, section 1001.36 was designed to encourage trial courts to broadly authorize pretrial mental health diversion, providing treatment for qualifying mental disorders that result in criminal behavior.

Authority:

PEN 1001.36

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 887, 890

Second Holding:

The decision whether to grant diversion is a two-step process. First, the court determines if the defendant satisfies the eligibility requirements set forth in section 1001.36(b). Defendants are eligible if they have been diagnosed with a recognized mental disorder that was a significant factor in the commission of the criminal offense with which they are charged.

Authority:

PEN 1001.36(a) – (b)

Third Holding:

Second, the court determines if the defendant is suitable for diversion under the factors set forth in section 1001.36(c). Those factors are: (1) in the opinion of a qualified mental health expert, the defendant’s mental disorder would respond to treatment; (2) the defendant agrees to waive their speedy trial rights; (3) the defendant agrees to comply with treatment requirements; and (4) the defendant will not pose an unreasonable risk of danger to public safety as defined in sections 1170.18 and 667(e)(2)(C)(iv).

Authority:

PEN 1001.36(a) and (c)

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

Fourth Holding:

Finally, even when all eligibility and suitability factors are met, courts have discretion to deny mental health diversion. But this residual discretion must be exercised consistent with the principles and purpose of the governing law.

Authority:

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 895-896

People v. Qualkinbush (2022) 79 Cal.App.5th 879, 888

Fifth Holding:

Our review is for abuse of discretion.

Authority:

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

Sixth Holding:

Under section 1170.18, the Legislature has narrowly defined an unreasonable risk of danger to public safety to mean an unreasonable risk that the petitioner will commit a new violent felony within the meaning of section 667(e)(2)(C)(iv). The violent felonies encompassed in this definition are known as super strikes. The super strikes are murder, attempted murder, solicitation to commit murder, assault with a machine gun on a police officer, possession of a weapon of mass destruction, any serious or violent felony punishable by death or life imprisonment, or any sexually violent offenses or sexual offense committed against minors under the age of 14.

Authority:

PEN 1170.18(c)

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

People v. Whitmill (2022) 86 Cal.App.5th 1138, 1150-1151

Seventh Holding:

By statute, when determining the risk of danger, t]he court may consider the opinions of the district attorney, the defense, or a qualified mental health expert, and may consider the defendant’s treatment plan, the defendant’s violence and criminal history, the current charged offense, and any other factors that the court deems appropriate. A defendant who seeks diversion is not being sentenced, so the general sentencing objectives set forth in rule 4.410 of the California Rules of Court are inapplicable.

Authority:

PEN 1001.36(c)(4)

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

Eighth Holding:

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.

The trial court expressed that it could not know whether the defendant was going to commit a super strike, and based on his two violent incidents from 2007 and 2010, the trial court concluded that there was a danger that there was a likelihood that the defendant could commit a super strike, thereby permitting the trial court to exercise its residual discretion to deny diversion.

But the court misunderstood what was required. The plain language of the statute requires a finding that a defendant will not pose an unreasonable risk of committing a super strike.

The statute does not, as the trial court suggested, require a prediction that a defendant will not, in fact, commit a super strike. The correct analysis thus requires assessing probabilities; not predicting outcomes, as the trial court incorrectly understood.

These are two distinct types of inquiry. Applying the correct standard to the record before us, we conclude the evidence is insubstantial that the defendant is too dangerous to be treated in the community on the ground that he poses an unreasonable risk of committing a super strike.

A trial court abuses its discretion when the factual findings critical to its decision find no support in the evidence.

Authority:

PEN 1001.36(c)(4)

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

People v. Cluff (2001) 87 Cal.App.4th 991, 998

Ninth Holding:

The only question that remains is whether further proceedings are required. We conclude they are not. The trial court found that the defendant satisfied all criteria for diversion except the public safety factor, leaving nothing further to be decided. The People do not argue otherwise. Under these circumstances, we will reverse the court’s order with directions to grant the defendant’s motion unless the People present changed circumstances that warrant rehearing.

Authority:

People v. Williams (2021) 63 Cal.App.5th 990, 1005

 

Discretion, Duty of the court, Standard of review

Case 000786

Posted on by Gary McCurdy

Error and/or relief

By shifting the burden of proof from the People to appellant, the trial court erred in denying the defendant’s petition to terminate his duty to register as a sex offender.

First Holding:

Before 2021, if an offender was required to register as a sex offender, they were required to register for life. Beginning on January 1, 2021, SB 384 (2017–2018 Reg. Sess.) restructured the sex offender registration requirement into three tiers: tier one, registrants must register for at least 10 years; tier two, for at least 20 years; and tier three, for their lifetimes.

Authority:

PEN 290(d)

People v. Franco (2024) 99 Cal.App.5th 184, 190

People v. Thai (2023) 90 Cal.App.5th 427, 432

Second Holding:

Appellant is a tier two registrant who is required to register for at least 20 years. Provided the registrant meets certain criteria, including registering for the required minimum period, a registrant can petition the superior court to terminate the registration requirement.

Authority:

PEN 290.5(a)-(c)

Third Holding:

Upon receiving notice of a petition to terminate registration, the district attorney may object and present evidence demonstrating that community safety would be significantly enhanced by continued registration.

The prosecutor has the burden of producing evidence to establish terminating the registration requirement would considerably raise the threat to society because the defendant is currently likely to reoffend. The trial court’s task is to assess whether the People have carried their burden of producing evidence establishing that requiring continued registration appreciably increases society’s safety.

Authority:

People v. Thai (2023) 90 Cal.App.5th 427, 433

People v. Franco (2024) 99 Cal.App.5th 184, 192

Fourth Holding:

In making this determination, the trial court may consider the following seven factors: [(1)] the nature and facts of the registerable offense; (2) the age and number of victims; (3) whether any victim was a stranger at the time of the offense (known to the offender for less than 24 hours); (4) criminal and relevant noncriminal behavior before and after conviction for the registerable offense; (5) the time period during which the person has not reoffended; (6) successful completion, if any, of a Sex Offender Management Board-certified sex offender treatment program; and (7) the person’s current risk of sexual or violent reoffense, including the person’s risk levels on SARATSO static, dynamic, and violence risk assessment instruments, if available.

The trial court may base its determination upon declarations, affidavits, police reports, or any other evidence submitted by the parties which is reliable, material, and relevant.

Authority:

PEN 290.5(a)(3)

Fifth Holding:

The standard of review applied by an appellate court reviewing a trial court’s order on a petition for termination is abuse of discretion. The showing required to establish an abuse of discretion is as follows: To establish an abuse of discretion, the defendant must demonstrate the trial court’s decision fell outside the bounds of reason, i.e., was arbitrary, capricious, or patently absurd.

The abuse of discretion standard is not a unified standard; the deference it calls for varies according to the aspect of a trial court’s ruling under review. The trial court’s findings of fact are reviewed for substantial evidence, its conclusions of law are reviewed de novo, and its application of the law to the facts is reversible only if arbitrary and capricious. A trial court abuses its discretion when its factual findings are not supported by the evidence, or its decision is based on an incorrect legal standard.

Authority:

People v. Thai (2023) 90 Cal.App.5th 427, 433

Sixth Holding:

Section 290.5 required the prosecutor to prove that appellant was currently likely to reoffend and that community safety would be significantly enhanced by continued registration. Here, the trial court denied the petition, at least in part, due to the absence of evidence that appellant no longer posed the threat he did when he committed the registrable offenses. Doing so placed the burden on appellant, rather than on the prosecutor, to produce evidence of the current threat, if any, posed by appellant. This was error. We remand for a new hearing.

Authority:

PEN 290.5(a)(2)-(3)

People v. Thai (2023) 90 Cal.App.5th 427, 432-433

People v. Franco (2024) 99 Cal.App.5th 184, 192

Seventh Holding:

(Gary Note: The court proceeded to explain why the error was prejudicial, applying the Watson standard, based on facts specific to this defendant, and the details need not be recited in this summary.)

Authority:

People v. Watson (1956) 46 Cal.2d 818, 836