Tag Archives: Standard of review

Abstracts and Minutes, Sentencing, Standard of review

Case 000812

Posted on by Gary McCurdy

Error and/or relief

Intro The defendant pled guilty to felon in possession of a firearm, and unlawfully carrying a firearm with intent to commit a felony. The trial court sentenced defendant to two years state prison on each count, with the terms to be run concurrently. The sentence violates Penal Code section 654, as both counts arise from the same act of possessing and carrying a firearm. On resentencing, the abstract of judgment needs to be corrected to reflect the actual oral pronouncement of judgment.
blurb here

First Holding:

Section 654(a) provides that an act or omission that is punishable in different ways by different provisions of law may be punished under either of such provisions, but in no case shall the act or omission be punished under more than one provision.

Authority:

PEN 654

Second Holding:

Both Count 1 and Count 2 are premised on the same act by defendant of owning, possessing, and carrying a firearm on or about [the date in question] and a single possession or carrying of a single firearm on a single occasion may be punished only once under section 654.

Authority:

People v. Jones (2012) 54 Cal.4th 350, 357

Third Holding:

Where, as here, the facts are undisputed, we review de novo the application of section 654 as a question of law.

Authority:

People v. Corpening (2016) 2 Cal.5th 307, 312

Fourth Holding:

The record is inadequate for us to determine which sentence the trial court would have stayed if it considered section 654, making section 1260 relief inappropriate. We will remand to the trial court so that it may exercise its discretion to determine which sentence to stay.

Authority:

PEN 1260

People v. Braxton (2004) 34 Cal.4th 798, 818–819 [A limited remand is appropriate under section 1260 for the exercise of any discretion that is vested by law in the trial court]

Fifth Holding:

Section 1260 provides in relevant part that the appellate court may reverse, affirm, or modify a judgment or order appealed from and may set aside, affirm, or modify any or all of the proceedings subsequent to, or dependent upon, such judgment or order. Although section 1260 provides this court with the broad ability to modify judgments or proceedings, we exercise this power sparingly for the trial court’s articulated discretion is, generally speaking, controlling.

Authority:

People v. Humphrey (1997) 58 Cal.App.4th 809, 813

Sixth Holding:

Where the reviewing court finds an error in the exercise of sentencing discretion, the ordinary remedy is to reverse and remand to the trial court for resentencing, during which the trial court will have a new opportunity to exercise its discretion. The law respects the substantial discretion vested in the trial court to determine the appropriate sentence in light of the facts and circumstances of the individual case. Modification of the judgment instead of remand for resentencing matters would be appropriate when a trial court’s intention is clear.

Authority:

People v. Dain (2025) 18 Cal.5th 246, 261

People v. Mendoza (2016) 5 Cal.App.5th 535, 539

Seventh Holding:

Although the previous version of section 654 provided that an act or omission shall be punished under the longest potential term of imprisonment, effective January 1, 2022, section 654 was revised to provide the trial court with discretion to impose and execute the sentence of either term. Thus, where section 654 applies, “after determining which sentence to execute, courts must impose a sentence on the other count to which Penal Code section 654 applies and then stay execution of that sentence.

[Gary note, of marginal historical interest: Prior to 1998, Penal Code section 654 had exactly the same language as it currently has, and a court was free to impose sentence on any one of the counts to which section 654 applied. See People v. Norrell (1996) 13 Cal.4th 1. In response to that Supreme Court decision, the Legislature amended section 654 to require that the court impose sentence on the count containing the longest potential term. Through AB 518, effective 1/1/2022, the Legislature restored section 654 to its former language, restoring to the court the discretion to choose on which count punishment should be imposed and executed.]

Authority:

People v. Mani (2022) 74 Cal.App.5th 343, 379-380

Eighth Holding:

In this instance, the record does not present any indication as to which sentence the trial court would have stayed if it had considered the effect of section 654. It is true, as the People note, that the [date of original sentence], minute order states “Principal Count Deemed to be Count 01.” The [date probation was revoked and sentence was executed] minute order states the same, as does the abstract of judgment. The reporter’s transcript, however, contains no record of such a designation of a principal count by the trial court. Where a conflict exists between the court’s oral pronouncement and the minute order or abstract of judgment, the oral pronouncement controls. Following resentencing, the abstract of judgment must be corrected to reflect the actual oral judgment.

Authority:

People v. Walz (2008) 160 Cal.App.4th 1364, 1367, fn. 3

Appellate Principles, Discretion, Sentencing, Standard of review

Case 000811

Posted on by Gary McCurdy

Error and/or relief

It was error for the court to order a stay-away order upon sentencing the defendant. Otherwise, we affirm the court’s sentencing choices.

First Holding:

Under section 136.2, when the court has a good cause belief that harm to, or intimidation or dissuasion of, a victim or witness has occurred or is reasonably likely to occur, the court is authorized to issue a restraining order. Orders made under section 136.2 are operative only during the pendency of criminal proceedings and as prejudgment orders. The only purpose of a section 136.2 protective order is to protect victims and witnesses in connection with the criminal proceeding in which the restraining order is issued in order to allow participation without fear of reprisal.

Authority:

PEN 136.2

People v. Scott (2012) 203 Cal.App.4th 1303, 1324–1325

People v. Ponce (2009) 173 Cal.App.4th 378, 383, 384 [Where the Legislature authorizes a specific variety of available procedures, the courts should use them and should normally refrain from exercising their inherent powers to invent alternatives.]

Second Holding:

We also observe that courts must, at the time of sentencing for certain crimes, consider issuing a protective order prohibiting a defendant from contacting a victim. None of these other statutes are applicable in this matter. The order issued against the defendant therefore transcended the authorization of section 136.2 and must be vacated.

Authority:

PEN 136.2(i)(1)

PEN 273.5

PEN 646.9(k)

People v. Stone (2004) 123 Cal.App.4th 153, 160
We review the trial court’s sentencing decisions for an abuse of discretion. Under this standard of 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.

Authority:
People v. Sandoval (2007) 41 Cal.4th 825, 847

Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 711–712

Third Holding:

To prove an abuse of discretion, the burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review

Authority:

People v. Fredrickson (2023) 90 Cal.App.5th 984, 988

People v. Carmony (2004) 33 Cal.4th 367, 377 [a sentencing court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it]

Fourth Holding:

Section 1170(b)(6) does not mandate a presumption in favor of the lower term in every case in which the defendant generally falls under one of the categories enumerated in the subdivision. Rather, the statute is clear that childhood trauma (or one of the other two categories in subdivision (b)(6)) must be a contributing factor to the offense in order to qualify for a presumption of the low term in sentencing. On this record, we cannot say that the court failed to consider section 1170(b)(6), or that its decision to impose the middle term notwithstanding the provision was so irrational or arbitrary that no reasonable person could agree with it.

Authority:

People v. Fredrickson (2023) 90 Cal.App.5th 984, 988, 991 [In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.]

People v. Hilburn (2023) 93 Cal.App.5th 189, 204, fn. 6

People v. Ramirez (2021) 10 Cal.5th 983 [Absent evidence to the contrary, we presume that the trial court knew the law and followed it]

People v. Carmony (2004) 33 Cal.4th 367, 377

Abstracts and Minutes, Effective assistance of counsel, Sentencing, Standard of review, Sufficiency of and substantial evidence

Case 000810

Posted on by Gary McCurdy

Error and/or relief

The trial court violated section 654 by imposing consecutive prison terms for the vandalism and burglary convictions because they arose from the same course of conduct. The vandalism consisted of using a drill drill and crowbar to take the door off its hinges to gain entry as part of the burglary.

First Holding:

Section 654(a) provides that an act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. Thus, the statute bars multiple punishments for a single act that violates more than one criminal statute, and for multiple acts where those acts comprise an indivisible course of conduct incidental to a single criminal objective and intent.

Authority:

People v. Latimer (1993) 5 Cal.4th 1203, 1208

Neal v. State of California (1960) 55 Cal.2d 11, 19

Second Holding:

When multiple offenses are committed during a course of criminal conduct deemed indivisible, the offenses are treated as only one punishable act. Whether a course of criminal conduct is divisible depends on the intent and objective of the actor.

If all of the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, the defendant may be found to have harbored a single intent and therefore may be punished only once.

If, however, the defendant entertained multiple criminal objectives that were independent of and not merely incidental to each other, he may be punished for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.

Authority:

People v. Harrison (1989) 48 Cal.3d 321, 335

People v. Beamon (1973) 8 Cal.3d 625, 637, 639

Third Holding:

Whether the defendant harbored separate objectives during a course of criminal conduct is primarily a question of fact for the trial court. We review a challenge under section 654 for substantial evidence to support the trial court’s determination. We review the trial court’s determination in the light most favorable to the respondent and presume the existence of every fact the trial court could reasonably deduce from the evidence.

Authority:

People v. Harrison (1989) 48 Cal.3d 321, 335

People v. Coleman (1989) 48 Cal.3d 112, 162

People v. Avalos (1996) 47 Cal.App.4th 1569, 1583

People v. Racy (2007) 148 Cal.App.4th 1327, 1336–1337

People v. Jones (2002) 103 Cal.App.4th 1139, 1143

Fourth Holding:

However, a decision supported by a mere scintilla of evidence need not be affirmed on appeal. Although substantial evidence may consist of inferences, those inferences must be products of logic and reason and must be based on the evidence. Inferences that are the result of mere speculation or conjecture cannot support a finding. The ultimate test is whether a reasonable trier of fact would make the challenged ruling considering the whole record.

Authority:

In re James R. (2009) 176 Cal.App.4th 129, 135

Fifth Holding:

The failure of defense counsel to object to the court’s decision not to stay the punishment does not forfeit. the issue. The waiver doctrine does not apply to questions involving the applicability of section 654. Errors in the applicability of section 654 are corrected on appeal regardless of whether the point was raised by objection in the trial court or assigned as error on appeal. This is because a sentence that is not authorized by law exceeds the jurisdiction of the court.

Authority:

People v. Perez (1979) 23 Cal.3d 545, 550, fn. 3

People v. Neal (1993) 19 Cal.App.4th 1114, 1120

Sixth Holding:

There was no evidence that the defendant harbored separated objectives.

Authority:

People v. Harrison (1989) 48 Cal.3d 321, 335 [We have traditionally observed that if all of the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once.]

Seventh Holding:

The abstract of judgment must be corrected because it fails to reflect the oral pronouncement of judgment in several respects. In a criminal case, it is the oral pronouncement of sentence that constitutes the judgment. Where, as here, a discrepancy exists between the court’s oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls. The clerk cannot supplement the judgment the court actually pronounced by adding a provision to the minute order and the abstract of judgment.

Authority:

People v. Scott (2012) 203 Cal.App.4th 1303, 1324

People v. Qualkinbush (2022) 79 Cal.App.5th 879, 893

People v. El (2021) 65 Cal.App.5th 963, 967

Discretion, Standard of review, Sufficiency of and substantial evidence

Case 000807

Posted on by Gary McCurdy

Error and/or relief

The court’s finding that the People overcame the statutory presumption that the defendant’s mental health diagnosis was a significant factor in the commission of the offenses was not supported by substantial evidence. Therefore, its denial of his application on that basis was an abuse of discretion.

As a result, we conditionally reverse the judgment and remand with instructions for the trial court to find the defendant eligible for diversion and hold a hearing to determine the defendant’s suitability for diversion.

If the court determines the defendant is suitable for diversion, it may grant his application. If the court determines the defendant is not suitable, the defendant’s convictions and sentence shall be reinstated.

First Holding:

We review a trial court’s ruling on an application for mental health diversion for an 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 findings that are not supported by substantial evidence. By definition, substantial evidence’ requires evidence and not mere speculation.

Authority:

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

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

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

Second Holding:

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

Authority:

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

Third Holding:

The Legislature enacted sections 1001.35 and 1001.36 to authorize trial courts to grant pretrial mental health diversion to defendants diagnosed with qualifying mental disorders. To be eligible for mental health diversion, a defendant must meet two requirements. First, 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. Second, the defendant’s mental disorder must be a significant factor in the commission of the offense.

Authority:

PEN 1001.36(b)

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

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

Fourth Holding:

To ensure that diversion applies as broadly as possible, the Legislature amended section 1001.36 to include a presumption that a defendant’s mental disorder diagnosis was a significant factor in the commission of the offense if the diagnosis occurred within the past five years. Once the presumption is established, to overcome it, the People must prove by clear and convincing evidence that defendant’s mental disorder was not a motivating, causal, or contributing factor in defendant’s commission of the offense.

Authority:

PEN 1001.36(b)(2)

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

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

Fifth Holding:

Even if a defendant meets the eligibility requirements, before the court can grant a defendant diversion, the court must also find the defendant suitable for diversion using the four criteria outlined in section 1001.36(c). Specifically, the court must find that (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 defendant will not pose an unreasonable risk of danger to public safety if treated in the community.

Authority:

PEN 1001.26(c)

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

Sixth Holding:

Even after finding a defendant eligible and suitable for diversion, however, a trial court may exercise its residual discretion to deny diversion. But this residual discretion must be exercised consistent with the principles and purpose of the governing law. That purpose includes a strong legislative preference for treatment of mental health disorders because of the benefits of such treatment to both the offending individual and the community.

Authority:

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

Seventh Holding:

In 2024, a mental health professional diagnosed the defendant with PTSD, major depressive disorder with psychotic features, and alcohol use disorder. Defendant’s diagnosis established a presumption that his mental health disorder was a significant factor in the commission of the robberies.

In response, the People argued that that it was simply impossible to believe that PTSD or depression caused the defendant and his cohorts to plan the robberies, which were obviously coordinated and planned out. The People offered no evidence, and the trial court did not identify any, establishing by clear and convincing evidence, that defendant’s mental disorder was not a motivating, causal, or contributing factor to defendant’s commission of the offenses. Their speculation about the cause of the robberies is not substantial evidence.

The absence of evidence proving that the defendant’s mental disorder was a factor in the commission of the [robberies] is not substantial evidence supporting a finding by clear and convincing evidence that the defendant’s mental disorder was not a factor in the commission of the offenses.

By finding the presumption was overcome even though the People offered no evidence that would establish that defendant’s mental disorder was not a motivating, causal, or contributing factor to defendant’s commission of the offenses, the trial court effectively shifted the burden to the defendant to affirmatively prove that his mental disorder contributed to the offenses. That is not the showing the statute requires.

Authority:

PEN 1001.36(b)(2)

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

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

Lacour v. Superior Court (2025) 110 Cal.App.5th 391, 404

Eighth Holding:

A court abuses its discretion when it bases its decision on express or implied factual findings that are not supported by substantial evidence. Because substantial evidence does not support the trial court’s finding that the presumption was overcome, it abused its discretion in denying defendant diversion based on that finding.

Authority:

Siam v. Superior Court (2026) 118 Cal.App.5th 67, 81

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

Ninth Holding:

We review the trial court’s factual findings for substantial evidence. A substantial evidence inquiry examines the record in the light most favorable to the judgment and upholds it if the record contains reasonable, credible evidence of solid value upon which a reasonable trier of fact could have relied in reaching the conclusion in question.

Once such evidence is found, the substantial evidence test is satisfied. The trial court found defendant would not pose an unreasonable risk to public safety as defined within the statute. Meaning that he was not likely to commit a super-strike offense if granted diversion. An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge. Because the record contains substantial evidence to support that finding, we do not disturb it.

Authority:

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

People v. Armstrong (2016) 1 Cal.5th 432, 450

People v. Carmony (2004) 33 Cal.4th 367, 377

 

Discretion, Standard of review, Sufficiency of and substantial evidence

Case 000798

Posted on by Gary McCurdy

Error and/or relief

The court erred in denying his petition either because the court either improperly shifted the burden to the defendant to prove his mental disorder was a significant factor in his charged crimes, or because substantial evidence does not support a finding by clear and convincing evidence that his mental disorder was not such a factor.

First Holding:

Penal Code section 1001.36 provides that a defendant in a criminal case is eligible for mental health diversion if he demonstrates: (1) he has been diagnosed with a recognized mental disorder; and (2) that disorder was a significant factor in the commission of the charged crime.

The defendant bears the burden of making a prima facie showing that he or she meets the minimum requirements of eligibility for diversion. However, 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(b)(2)

People v. Gerson (2022) 80 Cal.App.5th 1067, 1078–1079

Second Holding:

Additionally, the statute gives the trial court discretion to deny diversion even if the statutory requirements are met. However, this residual discretion must be exercised consistent with the principles and purpose of the governing law.

Authority:

Vaughn v. Superior Court (2024) 105 Cal.App.5th 124, 134

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

Third Holding:

We review the trial court’s denial of 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 when it bases its decision on express or implied factual findings that are not supported by substantial evidence.

Authority:

People v. Pacheco (2022) 75 Cal.App.5th 207, 213

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

Fourth Holding:

A trial court is not bound by an expert’s testimony and opinion. But even were the court to discount the psychiatrist’s report’s conclusion in its entirety, the absence of evidence proving that petitioner’s mental disorder was a factor in the commission of the offenses is not substantial evidence supporting a finding by clear and convincing evidence that petitioner’s mental disorder was not a factor in the commission of the offenses. It was the prosecution’s burden to present such clear and convincing evidence.

Here, it appears that the court either placed the burden on the defendant to demonstrate his mental disorder was a significant factor in the commission of the charged offenses or found clear and convincing evidence that the mental disorder was not a significant factor. In other words, the court either applied the wrong legal standard or based its decision on a factual finding unsupported by substantial evidence. Either way, reversal is required.

Authority:

In re J.S. (2024) 105 Cal.App.5th 205, 212

In re Scott (2003) 29 Cal.4th 783, 823 [The fact finder determines the facts, not the experts. Indeed, the fact finder may reject even a unanimity of expert opinion]

Lacour v. Superior Court (2025) 110 Cal.App.5th 391, 404

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

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

Case 000796

Posted on by Gary McCurdy

Error and/or relief

The conviction of assault with a firearm is reversed for insufficient evidence.

First Holding:

Section 245(a)(2), criminalizes the commission of an assault upon the person of another with a firearm. Assault is defined by statute as an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.

Authority:

PEN 245(a)(3)

PEN 240

Second Holding:

Assault is a general intent crime. It requires proof that the defendant willfully committed an act that by its nature will probably and directly result in injury to another. Further, the defendant must have been aware of the facts that would lead a reasonable person to realize that a battery would directly, naturally and probably result.

Authority:

People v. Williams (2001) 26 Cal.4th 779, 782, 788

Third Holding:

The actus reus of assault is the present ability to commit a violent injury on the person of another. It is the action enabling[a defendant to inflict a present injury. The present ability element is satisfied when a defendant has attained the means and location to strike immediately. In this context, however, immediately does not mean instantaneously. It simply means that the defendant must have the ability to inflict injury on the present occasion even if the defendant is several steps away from actually inflicting injury.

Authority:

PEN 240

People v. Chance (2008) 44 Cal.4th 1164, 1167-1168, 1172

People v. Licas (2007) 41 Cal.4th 362, 370

Fourth Holding:

As a general rule, a defendant cannot commit assault with a firearm using an unloaded or inoperable weapon, unless the firearm is used as a club or bludgeon. The reason is straightforward: absent the means to fire the weapon, the defendant lacks the present ability to commit a violent injury on the person threatened, in the manner in which the injury is attempted to be committed.

Authority:

People v. Rodriguez (1999) 20 Cal.4th 1, 11, fn. 3

People v. Mosqueda (1970) 5 Cal.App.3d 540, 544 [person pointing an unloaded gun at another has no present ability to commit a violent injury]

People v. Ranson (1974) 40 Cal.App.3d 317, 321

People v. Fain (1983) 34 Cal.3d 350, 357, fn. 6

People v. Valdez (1985) 175 Cal.App.3d 103, 110–111, 112 [assault defendant with an unloaded gun lacks personal means to inflict injury]

People v. Wolcott (1983) 34 Cal.3d 92, 102

People v. Orr (1974) 43 Cal.App.3d 666, 672

People v. Sylva (1904) 143 Cal. 62, 64

People v. Lee Kong (1892) 95 Cal. 666, 669 [it cannot be said that a person with an unloaded gun would have the present ability to inflict an injury upon another many yards distant]

People v. Chance (2008) 44 Cal.4th 1164, 1167-1168, 1173, fn. 11 [as the unloaded gun cases demonstrate, the defendant must have an actual, not merely apparent, ability to inflict injury]

Fifth Holding:

This rule, however, is not categorical. Consistent with Chance’s explanation that present ability requires only the ability to inflict injury on the present occasion, courts have recognized that an unloaded or inoperable firearm may support assault liability where the evidence establishes the defendant had the means to load and/or render it operable immediately.

Authority:

People v. Lattin (2024) 107 Cal.App.5th 596, 612, 620 [there is no brightline-rule requiring a loaded firearm]

People v. Ranson (1974) 40 Cal.App.3d 317, 321

Sixth Holding:

When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.

We determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. This determination presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.

Authority:

People v. Cardenas (2025) 18 Cal.5th 797, 821

Seventh Holding:

(Gary note: the court then outlined the evidence and concluded that it was insufficient to support this count. The defendant pulled the trigger but the gun was unloaded, and there was no evidence that he had the ability to reload it at the time of the offense. Thus, he had no present ability.)

Accordingly, the conviction on count 2 must be reversed for insufficient evidence, and double jeopardy bars retrial on that charge. The associated firearm enhancement (sec. 12022.5(a)) necessarily falls with the conviction. We vacate appellant’s sentence and remand the matter for resentencing.

Authority:

Lockhart v. Nelson (1988) 488 U.S. 33, 39

Eighth Holding:

A full resentencing is appropriate when part of a sentence is stricken on review. This permits the trial court to exercise its sentencing discretion in light of the changed circumstances.

Authority:

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

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

Amelioration, Elements of crime, Sentencing

Case 000784

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in denying the defendant’s motion to recall his sentence under section 1172.6. The evidence was insufficient to prove he is guilty of murder and attempted murder beyond a reasonable doubt.

First Holding:

SB 1437 (2017-2018 Reg. Sess.) eliminated the natural and probable consequences doctrine as it relates to murder to ensure a person’s sentence is commensurate with his or her criminal culpability. Specifically, it amended section 188 by adding a requirement that, except as stated in section 189(e), all principals to murder must act with express or implied malice to be convicted of that crime. SB 775 (2021-2022 Reg. Sess.) extended relief to defendants convicted of attempted murder, but only if their convictions were based on the natural and probable consequences doctrine.

Authority:

PEN 188(a)(3)

People v. Gentile (2020) 10 Cal.5th 830, 842-843, superseded by statute on another ground as stated in People v. Wilson (2023) 14 Cal.5th 839, 869

Second Holding:

SB 1437 also created a procedural mechanism for defendants with eligible murder convictions to seek retroactive relief under the amended law. Under section 1172.6, if a petitioner makes a prima facie showing of entitlement to relief, the trial court must issue an order to show cause and hold an evidentiary hearing.

At that hearing, the court sits as an independent fact finder and the prosecution has the burden of proving beyond a reasonable doubt that the defendant is guilty of murder or attempted murder under the amended law. The parties may offer new or additional evidence at the hearing.

Authority:

PEN 1172.6

People v. Strong (2022) 13 Cal.5th 698, 708

People v. Lewis (2021) 11 Cal.5th 952, 960

People v. Garrison (2021) 73 Cal.App.5th 735, 743

Third Holding:

Under direct aiding and abetting principles, an accomplice is guilty of an offense perpetrated by another [e.g., murder] if the accomplice aids the commission of that offense with knowledge of the direct perpetrator’s unlawful intent and with an intent to assist in achieving those unlawful ends. The defendant must not only know the direct perpetrator’s intent to commit murder, but he or she must share that intent. And, aiding and abetting the commission of a crime requires some affirmative action. The word aids refers only to overt or affirmative forms of assistance.

Authority:

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

People v. McCoy (2001) 25 Cal.4th 1111, 1118

People v. Partee (2020) 8 Cal.5th 860, 868

Fourth Holding:

We review a trial court’s denial of a section 1172.6 petition for substantial evidence. Under this standard, we review the 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 beyond a reasonable doubt that the defendant was a direct aider and abettor in the murder and attempted murders.

Authority:

People v. Emanuel (2025) 17 Cal.5th 867, 885

Fifth Holding:

Murder is the unlawful killing of a human being with malice aforethought. Malice may be express or implied. The difference between express malice and implied malice is the former requires an intent to kill but the latter does not.

Authority:

PEN 187(a)

PEN 188(a)

People v. Soto (2018) 4 Cal.5th 968, 976

Sixth Holding:

Although intent to kill is certainly blameworthy, it is insufficient standing alone to render a person culpable for another’s acts. The aider and abettor must know the direct perpetrator intends to commit the murder and intend to aid the direct perpetrator in its commission. It is this mental relationship to the perpetrator’s acts that confers liability on the aider and abettor.

Authority:

People v. Curiel (2023) 15 Cal.5th 433, 453

Seventh Holding:

We cannot presume that because members of the defendant’s group belonged to the same gang, they must have known each other’s intent. Indeed, the law does 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. Without knowledge of his cohort’s intent to kill, any of the defendant’s subsequent acts cannot constitute the actions necessary to establish aider and abettor liability.

Authority:

People v. Ware (2022) 14 Cal.5th 151, 165