Tag Archives: Statutory interpretation

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

 

Sentencing, Statutory interpretation

Case 000741

Posted on by Gary McCurdy

Error and/or relief

The court erred in not conducting a full resentencing on the defendant’s petition for recall under section 1172.75. Remanded for full resentencing.

First Holding:

When a defendant raises both statutory and constitutional bases for their appeal, we do not reach the constitutional grounds if the case can be resolved on statutory grounds. When a defendant appeals the denial of a Marsden motion, the core inquiry is whether the trial court’s ruling violated the defendant’s constitutional right to the effective assistance of counsel.

Authority:

Swart Enterprises, Inc. v. Franchise Tax Bd. (2017) 7 Cal.App.5th 497, 513 [a reviewing court should consider a constitutional question only where essential to the disposition of a case]

People v. Marsden (1970) 2 Cal.3d 118, 123

People v. Smith (1993) 6 Cal.4th 684, 696

Second Holding:

On the other hand, the scope of a trial court’s application of section 1172.75 is a question of statutory interpretation, which is subject to our de novo review. If that review resolves the appeal, it is dispositive.

Authority:

People v. Renteria (2023) 96 Cal.App.5th 1276, 1281–1282

Santa Clara County Local Transportation Authority v. Guardino (1995) 11 Cal.4th 220, 230–231 [finding that where statutory and constitutional claims are at issue and resolution of the statutory ground is adequate to resolve the matter, doing so is dispositive]

Third Holding:

The parties disagree about whether defendant forfeited his argument that the trial court erred by failing to conduct a full resentencing under section 1172.75. In the interests of judicial economy, to forestall an ineffective assistance of counsel habeas petition, and to avoid the constitutional issues raised by defendant regarding the performance of his trial counsel, we decline to enforce any forfeiture under the circumstances of this case.

Authority:

People v. Monroe (2022) 85 Cal.App.5th 393, 400

Fourth Holding:

In general, we review a trial court’s sentencing decisions for abuse of discretion. An abuse of discretion is found where the court relies upon circumstances that are not relevant to the decision or that otherwise constitute an improper basis for decision.

Authority:

People v. Gonzalez (2024) 107 Cal.App.5th 312, 323

Fifth Holding:

Defendants are entitled to sentencing decisions made in the exercise of the informed discretion of the sentencing court. A court that is unaware of the scope of its discretionary powers can no more exercise that informed discretion than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant’s record. In such circumstances, we have held that the appropriate remedy is to remand for resentencing unless the record clearly indicates that the trial court would have reached the same conclusion even if it had been aware that it had such discretion.

Authority:

People v. Gutierrez (2014) 58 Cal.4th 1354, 1391

Sixth Holding:

Where an issue on appeal requires that we determine the meaning of a statute, we review the trial court’s decision de novo. In any case involving statutory interpretation, our fundamental task is to determine the Legislature’s intent so as to effectuate the law’s purpose. We begin by examining the statute’s words, giving them a plain and commonsense meaning. When the language of a statute is clear, we need go no further.

Authority:

People v. Gonzalez (2024) 107 Cal.App.5th 312, 323

People v. Scott (2014) 58 Cal.4th 1415, 1421

People v. Blackburn (2015) 61 Cal.4th 1113, 1123 [If no ambiguity appears in the statutory language, we presume that the Legislature meant what it said, and the plain meaning of the statute controls]

Seventh Holding:

Section 1172.75 makes any sentence enhancement imposed prior to January 1, 2020, pursuant to 667.5(b) legally invalid unless it was imposed for a prior conviction for a sexually violent offense as defined in section 6600(b) of the Welfare and Institutions Code. If the court determines (through the process set forth in the statute) that the defendant’s sentence includes an invalid enhancement, it is required to recall the sentence and resentence the defendant. An eligible defendant under section 1172.75 is entitled to a full resentencing.

Authority:

PEN 1172.75

People v. Rhodius (2025) 17 Cal.5th 1050, 1067, fn. 3 [Where section 1172.75 applies, it requires full resentencing, not simply striking the now-invalidated priors]

People v. Monroe (2022) 85 Cal.App.5th 393, 402 [By its plain terms, section 1172.75 requires a full resentencing, not merely that the trial court strike the newly invalid enhancements]

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

Case 000736

Posted on by Gary McCurdy

Error and/or relief

There is insufficient evidence proving the defendant burned forest land as that term is defined by section 450(b).

First Holding:

Section 451 provides that a person is guilty of arson when he or she willfully and maliciously sets fire to or burns or causes to be burned any structure, forest land, or property. Section 451 identifies four types of felonious arson: (1) arson causing great bodily injury; (2) arson causing an inhabited structure or property to burn; (3) arson of a structure or forest land; and (4) arson of property. Section 450(b) defines forest land as any brush covered land, cut-over land, forest, grasslands, or woods.

By contrast, property means real property or personal property, other than a structure or forest land. The maximum sentence for arson of a structure or forest land is double that of the maximum sentence for arson of uninhabited property.

Authority:

PEN 451

PEN 450

Second Holding:

At the heart of this case lies a question of statutory interpretation—the meaning of forest land—which we consider de novo. Our primary task in interpreting the statute is to determine the lawmakers’ intent. We begin with the words of the statute and their usual and ordinary meaning, which would typically be their dictionary definition. Their plain meaning controls, unless the words are ambiguous. If the statute is ambiguous, we may consider a variety of extrinsic aids, including legislative history, the statute’s purpose, and public policy.

Authority:

People v. Costella (2017) 11 Cal.App.5th 1, 5-6

People v. Prunty (2015) 62 Cal.4th 59, 71

Third Holding:

To the extent we must determine whether there was sufficient evidence of forest land, we consider whether the record discloses substantial evidence—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 examine the whole record in the light most favorable to the judgment and we do not reweigh evidence. In the end, the only evidentiary question before us is whether the prosecution—consistent with the theory it advanced regarding what constituted forest land—presented sufficient proof in this case.

Authority:

People v. Costella (2017) 11 Cal.App.5th 1, 5

People v. Prunty (2015) 62 Cal.4th 59, 71

People v. Oyler (2025) 17 Cal.5th 756, 820

Fourth Holding:

It appears undisputed that the site here does not fall within the statutory definition of forest land as cut-over land, forest, or woods. The People argue it constitutes forest land as grasslands or brush covered land. We disagree. Merriam-Webster defines grassland as farmland occupied chiefly by forage plants and especially grasses, or land on which the natural dominant plant forms are grasses and forbs, or an ecological community in which the characteristic plants are grasses. Based on these definitions and the language of sections 450 and 451, we agree with the defendant that the mere presence of grass is insufficient to make an area a grassland.

The statutes distinguish between arson of forest land, including grasslands, and arson of other types of uninhabited property, suggesting that the Legislature intended forest land to mean something other than any land on which grass grows. The definitions suggest a grassland is an open land or prairie, occupied largely by grasses, rather than just any land with grass on it, such as a lawn or park. The 1979 amendment to the statute from “any grass” to “grasslands” suggests the Legislature intended to narrow the types of grassy areas giving rise to heightened punishment for arson.

Authority:

PEN 450

Fifth Holding:

Based on the definitions and the discussion in Costella, we believe the definition of “brush covered land” requires that at least some portion of the land in question be densely populated with brush, even if it is not continuously covered with brush. Here, there was insufficient evidence to support a conclusion that the area affected was forest land or grassland or brush covered land. In sum, there is insufficient evidence that the land at issue constituted forest land under sections 450, subdivision (b), and 451, subdivision (c). Therefore, the arson conviction must be reversed.

Authority:

PEN 450

PEN 451

People v. Costella (2017) 11 Cal.App.5th 1, 7

Appellate Principles, Sentencing, Standard of review, Statutory interpretation

Case 000623

Posted on by Gary McCurdy

Error and/or relief

The court erred in concluding that the defendant was not eligible for recall of sentence under section 1172.75 because he is serving a term of life without the possibility of parole (LWOP). The prohibition applies only to those who are service an LWOP sentence as a result of conviction of specified sex offenses. It does not apply to those serving an LWOP sentence for other offenses. The language of the exclusion is conjunctive, not disjunctive. [Gary note: REVIEW HAS BEEN GRANTED IN THIS CASE AND HELD PENDING DIXON.]

First Holding:

As of January 1, 2025, 1172.75(f) provides that an individual who has been convicted of a sexually violent offense as defined in section 6600(b) of the Welfare and Institutions Code and sentenced to death or a life term without the possibility of parole, who, as of January 1, 2025, has not had their judgment reviewed and verified by the sentencing court as provided in subdivision (c), is not eligible for recall and resentencing under this section.

Authority:

PEN 1172.75(f)

Second Holding:

This is a question of statutory interpretation that we review de novo.

Authority:

Brown v. City of Inglewood (2025) 18 Cal.5th 33, 40

Third Holding:

When interpreting any statute, our goal is to determine the Legislature’s intent and give effect to the statute’s purpose. We begin by examining the statute’s words, giving them a plain and commonsense meaning. We do not, however, consider the statutory language in isolation. We construe the words in question in context, keeping in mind the nature and obvious purpose of the statute. We also construe every statute with reference to the whole system of law of which it is a part, so that all may be harmonized and anomalies avoided. The statute’s plain meaning controls the court’s interpretation unless its words are ambiguous. If the statutory language is unclear, we may look to legislative history and public policy as aids in determining how best to give effect to Legislative intent.

Authority:

Iloff v. LaPaille (2025) 18 Cal.5th 551, 560-561

Hohenshelt v. Superior Court (2025) 18 Cal.5th 310, 330

People v. Rhodius (2025) 17 Cal.5th 1050, 1057

Fourth Holding:

Subsequent to defendant’s original sentencing, SB 136 (2019–2020 Reg. Sess.) amended section 667.5(b) to allow for the imposition of one-year prior prison term enhancements only for specified sexually violent offenses. Thereafter, the Legislature added section 1172.75, which provides that any sentence enhancement that was imposed prior to January 1, 2020, pursuant to section 667.5(b), except for any enhancement imposed for a prior conviction for a sexually violent offense, is legally invalid. It also provided a process for recall of sentences rendered invalid and resentencing of affected defendants.

Authority:

PEN 1172.75

Fifth Holding:

Resentencing pursuant to section 1172.75 entitles a defendant to a full resentencing, including application of the rules of the Judicial Council and application of any other changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing. Resentencing pursuant to section 1172.75 must “result in a lesser sentence than the one originally imposed as a result of the elimination of the repealed enhancement, unless the court finds by clear and convincing evidence that imposing a lesser sentence would endanger public safety. In no circumstance can resentencing result in a longer sentence than the one originally imposed.

Authority:

PEN 1172.75

People v. Rhodius (2025) 17 Cal.5th 1050, 1067, fn. 3 [where section 1172.75 applies, it requires full resentencing, not simply striking the now-invalidated priors]

Sixth Holding:

Effective January 1, 2025, SB 285 amended section 1172.75 to add subdivision (f). Subdivision (f) provides: “Commencing on January 1, 2025, an individual who has been convicted of a sexually violent offense as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code and sentenced to death or a life term without the possibility of parole, who, as of January 1, 2025, has not had their judgment reviewed and verified by the sentencing court as provided in subdivision (c) [of section 1172.75], is not eligible for recall and resentencing under this section. This subdivision does not apply retroactively.”

Authority:

PEN 1172.75(f)

Seventh Holding:

The ordinary and usual usage of “and” is as a conjunctive, meaning “an additional thing, “also” or “plus.” By contrast, use of the word “or” in a statute indicates an intention to use it disjunctively so as to designate alternative or separate categories. But the word “and” is not always to be taken conjunctively. It is sometimes, in a fair and rational construction of a statute, to be read as if it were “or,” and taken disjunctively.

Thus, courts will sometimes substitute “or” for “and,” and vice versa, when necessary to accomplish the evident intent of the statute, but doing so is an exceptional rule of construction. Thus, for example, a court may substitute “or” for “and” to correct a drafting error where it appears clear that a word has been erroneously used, and a judicial correction will best carry out the intent of the adopting body. Additionally, a court may substitute “or” for “and” to avoid a construction of the statute that would make some words surplusage.

Authority:

People v. Reynoza (2024) 15 Cal.5th 982, 990–991

In re C.H. (2011) 53 Cal.4th 94, 102–103, superseded by statute on another ground as stated in In re Edward C. (2014) 223 Cal.App.4th 813, 824

(GARY NOTE: AS CAN BE READ IN THE SIMILAR CASE THAT WAS PUBLISHED THIS DATE, the court engaged in examining how the Legislature used “or” in other parts of the section where “or” was clearly intended, and “and” similarly. It was clear to this court that the Legislature was aware of the difference and that it intended to mean exactly what it said–the exclusion applies to a person who was sentenced to LWOP because of specified sexual offenses. The legislative history revealed that the amendment was in response to the impact of section 1172.75 on the sentence of a notorious defendant convicted of murder and sexual offenses for which he received death sentence several decades earlier. It also noted Dixon (in which review has been granted), which concluded that nothing in section 1172.75 excluded individuals under a judgment of death.

(People v. Dixon (2025) 112 Cal.App.5th 236, 247, review granted Oct. 22, 2025, S292223 The issues on review in the Supreme Court in Dixon are described as: (1) May a superior court modify a death judgment under the recall and resentencing procedure in Penal Code section 1172.75? (2) Did the Court of Appeal err in holding that the exclusivity provision of Penal Code section 1509 precludes modification of a death judgment under Penal Code section 1172.75? (3) Did the superior court have jurisdiction to resentence defendant pursuant to Penal Code section 1172.75 when his appeal was pending before this court?

(People v. Robinson (2026) 120 Cal.App. 5th 516 (F089332, filed 5/8/2026) but review was granted in the published decision on 7/16/26, granted and held pending Dixon S292223)