Tag Archives: Sufficiency of and substantial evidence

Sentencing, Standard of review, Sufficiency of and substantial evidence

Case 000879

Posted on by Gary McCurdy

Error and/or relief

We reverse the jury’s true finding on the enhancement alleged under section 12022.7(b). We vacate the sentence and remand the matter for resentencing.

First Holding:

In assessing a claim of insufficiency of the evidence, we review the whole record in the light most favorable to the judgment below to determine whether it discloses 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. Reversal on insufficiency of the evidence is unwarranted unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support the conviction.

Authority:

People v. Snow (2003) 30 Cal.4th 43, 66

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

Second Holding:

Section 12022.7(b) provides that any person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony or attempted felony which causes the victim to become comatose due to brain injury or to suffer paralysis of a permanent nature shall be punished by an additional and consecutive term of imprisonment in the state prison for five years.

Authority:

PEN 12022.7(b)

Third Holding:

A victim is comatose, for purposes of the enhancement, if he is in a state resembling a coma characterized by profound unconsciousness. Here, the evidence established that the victim was rendered unresponsive as a result of the attack and died from injuries to his brain. Respondent concedes that the evidence fails to prove that the victim was ever comatose.

Authority:

People v. Cunningham (2016) 244 Cal.App.4th 1049, 1054

Fourth Holding:

The parties agree that appellant is entitled to resentencing, at which the trial court can exercise its sentencing discretion in light of the changed circumstances.

Authority:

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

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

Case 000878

Posted on by Gary McCurdy

Error and/or relief

The court’s use of the kill zone instruction was factually unsupported and should not have been given and the court’s instruction identified a primary target not supported by the evidence.

First Holding:

To prove the crime of attempted murder, the prosecution must establish ‘the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing. To be guilty of attempted murder, the defendant must intend to kill the alleged victim, not someone else. The defendant’s mental state must be examined as to each alleged attempted murder victim.

Authority:

People v. Canizales (2019) 7 Cal.5th 591, 602

People v. Bland (2002) 28 Cal.4th 313, 328

Second Holding:

To be guilty of attempted murder under an aiding and abetting theory, the defendant must share the specific intent of the direct perpetrator, that is to say, the person must know the full extent of the direct perpetrator’s criminal purpose and must give aid or encouragement with the intent or purpose of facilitating the direct perpetrator’s commission of the crime. In short, to be guilty of attempted murder as an aider and abettor, the defendant must intend to kill.

Authority:

People v. Lee (2003) 31 Cal.4th 613, 624, superseded by statute on other grounds as stated in People v. Rodriguez (2022) 75 Cal.App.5th 816, 823–824

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

Third Holding:

The Supreme Court has expressly embraced the concept of a concurrent intent to kill as a permissible theory for establishing the specific intent requirement of attempted murder. This concurrent intent theory is referred to as the “kill zone.” Under the kill zone theory, a defendant may be convicted of the attempted murder of an individual who was not the defendant’s primary target.

The kill zone theory permits a jury to infer a defendant’s intent to kill an alleged attempted murder victim from circumstantial evidence (the circumstances of the defendant’s attack on a primary target).

Authority:

People v. Canizales (2019) 7 Cal.5th 591, 596-597, 602

People v. Mumin (2023) 15 Cal.5th 176, 193

Fourth Holding:

The kill zone theory may properly be applied only when a jury concludes:

(1) the circumstances of the defendant’s attack on a primary target, including the type and extent of force the defendant used, are such that the only reasonable inference is that the defendant intended to create a zone of fatal harm—that is, an area in which the defendant intended to kill everyone present to ensure the primary target’s death—around the primary target, and (2) the alleged attempted murder victim who was not the primary target was located within that zone of harm.

Relevant factors in determining whether defendant intended to create a kill zone are (1) number of shots fired, (2) nature of the zoned area, (3) distance between primary target and others, (4) distance between defendant and others, (5) type of weapon used, and (6) whether anyone was hit.

Authority:

People v. Canizales (2019) 7 Cal.5th 591, 607

Fifth Holding:

Our inquiry on appeal is whether substantial evidence was presented to support a reasonable inference by the jury that defendant intended to create a zone of fatal harm around a primary target.

Justification for instructing on the kill zone theory requires substantial evidence that: (1) the defendant intended to kill a primary target; (2) he concurrently intended to achieve that goal by killing all others in the fatal zone he creates; and (3) the alleged attempted murder victim was in that zone.

These requirements must be strictly adhered to in order to protect against an improper attempted murder conviction based only on a conscious disregard for life because the kill zone theory does not apply where the defendant merely subjected persons near the primary target to lethal risk.

Because use or attempted use of force that merely endangered everyone in the area is insufficient to support a kill zone instruction, trial courts must exercise caution when determining whether to permit the jury to rely upon the kill zone theory.

Indeed, as stated in Canizales, we anticipate there will be relatively few cases in which the theory will be applicable and an instruction appropriate.

Authority:

People v. Mumin (2023) 15 Cal.5th 176, 203

People v. Canizales (2019) 7 Cal.5th 591, 607-608

Sixth Holding:

Fundamental to the kill zone theory is a particular relationship between the primary target, the means of the attack, and the secondary target. Specifically, the would-be secondary targets must be endangered not because they were specifically targeted by defendant but because the defendant has a primary target and reasons that he cannot miss that intended target if he kills everyone in the area in which the target is located.

Authority:

People v. Mumin (2023) 15 Cal.5th 176, 203

(Gary note: The opinion goes on to analyze the facts in the case against the above principles to determine whether it was proper to instruct on the kill zone doctrine and whether the court correctly identified the specific target. It also analyzed the impact of the prosecutor’s summation on the matter. Because this is an unpublished opinion, and the importance lies only in its legal principles and the published authority in support of those principles, I am omitting the balance of the court’s discussion applying those principles in support of its conclusions that it was improper to instruct on kill zone in this case.)

Appellate Principles, Elements of crime, Juveniles, Sentencing, Standard of review, Sufficiency of and substantial evidence

Case 000875

Posted on by Gary McCurdy

Error and/or relief

We reverse four of the five counts of evading the police under Vehicle Code section 2800.3 and remand for a new disposition order.

The minor’s constitutional challenges to the dispositional order are forfeited on appeal, and we will not consider them.

First Holding:

Dispositional orders in juvenile matters are entrusted to the discretion of the juvenile court. Failure to object to a discretionary dispositional choice forfeits the claim on appeal.

But the forfeiture rule does not apply if the disposition is unauthorized; that is, if it could not lawfully be imposed under any circumstance in the particular case. In those situations, the unauthorized disposition presents a pure question of law.

The unauthorized sentence concept is a narrow exception to the general requirement that only preserved claims are reviewable on appeal. And while reviewing courts have the discretion to consider forfeited claims on appeal, they should do so rarely, keeping in mind that the forfeiture rule exists to encourage prompt detection and correction of error and to promote the state’s interest in finality of judgments.

Authority:

In re Greg F. (2012) 55 Cal.4th 393, 411

In re G.C. (2020) 8 Cal.5th 1119, 1130-1131

People v. Scott (1994) 9 Cal.4th 331, 351, 354

In re Sheena K. (2007) 40 Cal.4th 875, 885

People v. Fisher (2021) 71 Cal.App.5th 745, 751-752

In re H.D. (2024) 99 Cal.App.5th 814, 817-818

People v. Anderson (2020) 9 Cal.5th 946, 962 [the unauthorized sentence exception is designed to provide relief from forfeiture for obvious legal errors at sentencing such as a sentence in excess of the statutory maximum]

Second Holding:

Further, we disagree with the minor’s contention that his constitutional challenges to the disposition present pure legal questions. His challenges ask us to consider his self-evident lesser culpability relative to an older juvenile. But culpability determinations are for the trier of fact, not an appellate court.

Authority:

People v. Vang (2010) 184 Cal.App.4th 912, 915-916

Third Holding:

Finally, the minor contends we should consider his forfeited claims because his trial counsel provided ineffective assistance by failing to raise them. But trial counsel is not ineffective for failing to raise novel claims like the ones here.

Authority:

People v. Torres (2025) 113 Cal.App.5th 88, 92 [to forestall a claim of ineffective assistance of counsel, reviewing courts can exercise their discretion to reach the merits of the claim].

In re Grinder (2025) 114 Cal.App.5th 845, 871-872

People v. Foster (2003) 111 Cal.App.4th 379, 385.

Fourth Holding:

We decline to exercise any discretion we might have to consider these forfeited claims because doing so (1) would be unfair to the People and the juvenile court, which had no opportunity to address the claims below, and (2) would undermine both the state’s interest in finality of judgments and litigants’ incentive to seek correction of error in the first instance.

Further, we should not reach constitutional questions unless absolutely required to do so to dispose of the matter before us. Accordingly, the minor’s constitutional challenges to the dispositional order are forfeited on appeal, and we will not consider them.

Authority:

In re M.H. (2016) 1 Cal.App.5th 699, 713-714

In re G.C. (2020) 8 Cal.5th 1119, 1130-1131

People v. Scott (1994) 9 Cal.4th 331, 351,

Facebook, Inc. v. Superior Court (Hunter) (2018) 4 Cal.5th 1245, 1275, fn. 31

Fifth Holding:

Penal Code section 26 provides, in relevant part, that all persons are capable of committing crimes except those belonging to the following classes: One—Children under the age of 14, in the absence of clear proof that at the time of committing the act charged against them, they knew its wrongfulness. ….

Authority:

PEN 26

Sixth Holding:

Clear proof means clear and convincing evidence. The test on appeal is whether substantial evidence supports the conclusion of the trier of fact.

We review the entire record in the light most favorable to the judgment and affirm the juvenile court’s findings that the minor understood the wrongfulness of his conduct if they are supported by substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could have made the requisite finding under the governing standard of proof. In determining capacity the juvenile court must consider the child’s age, experience, and understanding.

A minor’s knowledge of his act’s wrongfulness may be inferred from the circumstances, such as the method of its commission or its concealment.

Authority:

In re Joseph H. (2015) 237 Cal.App.4th 517, 538-539

Seventh Holding:

While the language of the statute refers to knowledge of wrongfulness, the question is whether a minor appreciates the wrongfulness of their conduct. As minors approach the age of 14, they are increasingly likely to appreciate the wrongfulness of their acts.

Authority:

In re Manuel L. (1994) 7 Cal.4th 229, 232

People v. Cottone (2013) 57 Cal.4th 269, 281

In re J.E. (2020) 54 Cal.App.5th 309, 314

Eighth Holding:

Cases are not authority for propositions not considered.

Authority:

B.B. v. County of Los Angeles (2020) 10 Cal.5th 1, 11

Ninth Holding:

Four of the five Vehicle Code section 2800.3 true findings must be stricken. A charge of multiple counts of violating a statute is appropriate only where the actus reus prohibited by the statute—the gravamen of the offense—has been committed more than once. A defendant may properly be convicted of multiple counts for multiple victims of a single criminal act only where the act prohibited by the statute is centrally an act of violence against the person.

Authority:

Wilkoff v. Superior Court (1985) 38 Cal.3d 345, 349

People v. Garcia (2003) 107 Cal.App.4th 1159

Tenth Holding:

Vehicle Code section 2800.3 provides that whenever willful flight or attempt to elude a pursuing peace officer in violation of section 2800.1 proximately causes serious bodily injury or death, the person driving the pursued vehicle shall be punished. Felony evading, as defined by the Legislature, in Vehicle Code section 2800.3, is not a crime of violence.

Under Wilkoff and Garcia there can be only one Vehicle Code section 2800.3 true finding here. Thus, four of the five Vehicle Code section 2800.3 true findings must be stricken.

Authority:

VEH 2800.3

Wilkoff v. Superior Court (1985) 38 Cal.3d 345, 349

People v. Garcia (2003) 107 Cal.App.4th 1159, 1163

People v. Sanchez (2001) 86 Cal.App.4th 970, 973-974 [Because dispositive elements of Vehicle Code section 2800.3 can be satisfied by conduct that does not necessarily pose a high probability of death, it is not a felony inherently dangerous to human life.]

Eleventh Holding:

It is improper to raise new contentions in a reply brief. Further, appellate arguments may be deemed forfeited when they do not contain meaningful analysis and citation to supporting authority.

Authority:

People v. Taylor (2004) 119 Cal.App.4th 628, 642-643

People v. Stanley (1995) 10 Cal.4th 764, 793

Twelfth Holding:

In criminal court, when part of a sentence is stricken on review, on remand for resentencing a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances. The same principle applies in juvenile court. Since we strike four of the juvenile court’s Vehicle Code section 2800.3 true findings, a new disposition is required.

Authority:

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

In re Shaun R. (2010) 188 Cal.App.4th 1129, 1140 [every time a ward appears for disposition, the court may consider the minor’s entire history and the order must be all encompassing]

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

Case 000833

Posted on by Gary McCurdy

Error and/or relief

The trial court’s true findings on three of the four strike priors and three of the four prior serious felony enhancements must be vacated and the matter remanded to the court for any retrial of these allegations, because there is insufficient evidence to support the finding defendant’s three 2016 convictions qualify as serious or violent felonies for purposes of three of the four strike priors and three of the four prior serious felony enhancements under the 2022 amendments to section 186.22 enacted by AB 333.

First Holding:

Under the Three Strikes law, defendants previously convicted of serious or violent felonies are subject to increased prison terms: if a defendant has one prior conviction for a serious or violent felony, the defendant’s term of imprisonment is doubled, and if a defendant has two or more such strike priors, the defendant may receive life imprisonment.

The Three Strikes law defines “serious or violent” felony to include any offense defined as a serious felony under section 1192.7(a). Section 1192.7 defines “serious felony” to include, among other things, any felony offense that would also constitute a felony violation of section 186.22.

Authority:

PEN 1170.12

PEN 1192.7(c)(28)

Second Holding:

Section 186.22(a) makes it unlawful to actively participate in a criminal street gang with knowledge that its members engage in, or have engaged in, a pattern of criminal gang activity, and to willfully promote, further, or assist in felonious criminal conduct by members of that gang.

Section 186.22(b) provides for enhancements if a person commits a felony for the benefit of such a gang. Section 186.22 also defines the terms criminal street gang and pattern of criminal gang activity as well as benefitting a gang.

Authority:

PEN 186.22

Third Holding:

Effective January 1, 2022, AB 333 narrowed the definition of a criminal street gang, the definition of a pattern of criminal activity, and what it means for an offense to have commonly benefitted a street gang.

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

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

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

Fourth, AB 333 narrowed what it means for an offense to have commonly benefitted a street gang, requiring that any common benefit be more than reputational. Moreover, because these changes are ameliorative in nature, they apply to nonfinal judgments on appeal.

Authority:

PEN 186.22

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

Fourth Holding:

Fletcher held that, where a defendant has suffered a conviction under the prior version of section 186.22, AB 333 applies to the determination of whether the conviction qualifies as a prior serious felony conviction under section 1192.7(c)(28) for purposes of the Three Strikes law and prior serious felony enhancements.

Whether a prior conviction was for an offense that constitutes a felony violation of section 186.22 is determined by applying the current version of section 186.22.

Authority:

People v. Fletcher (2025) 18 Cal.5th 576, 583, 607

Fifth Holding:

On appeal, a reviewing court must examine the record in the light most favorable to the judgment to ascertain whether it is supported by substantial evidence. In other words, the reviewing court determines whether a rational trier of fact could have found the prosecution sustained its burden of proving the elements of the sentence enhancement beyond a reasonable doubt.

The People must prove all elements of an alleged sentence enhancement beyond a reasonable doubt. Where the mere fact of conviction under a particular statute does not prove the offense was a serious felony, otherwise admissible evidence from the entire record of the conviction may be examined to resolve the issue.

Authority:

People v. Miles (2008) 43 Cal.4th 1074, 1082, 1083

People v. Delgado (2008) 43 Cal.4th 1059, 1067

Sixth Holding:

The inquiry concerning whether a prior conviction qualifies as a serious felony is a determination regarding the nature or basis of the defendant’s prior conviction—specifically, whether that conviction qualified as a conviction of a serious felony.

If the prior conviction was for an offense that can be committed in multiple ways, and the record of the conviction does not disclose how the offense was committed, a court must presume the conviction was for the least serious form of the offense.

In such a case, if the statute under which the prior conviction occurred could be violated in a way that does not qualify for the alleged enhancement, the evidence is thus insufficient, and the People have failed in their burden.

Authority:

People v. McGee (2006) 38 Cal.4th 682, 706

People v. Delgado (2008) 43 Cal.4th 1059, 1065 (superseded by statute on another ground, as stated in People v. Frahs (2018) 27 Cal.App.5th 784, 795)

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

Case 000828

Posted on by Gary McCurdy

Error and/or relief

The Trial Court Erred by Failing to Instruct on the Lesser Included Offense of Nonforcible Lewd Acts as to Count 8.

First Holding:

A trial court must instruct on lesser included offenses, even in the absence of a request, whenever there is substantial evidence raising a question as to whether all of the elements of the charged offense are present. Substantial evidence is evidence sufficient to deserve consideration by the jury, that is, evidence that a reasonable jury could find persuasive.

Authority:

People v. Lewis (2001) 25 Cal.4th 610, 645

Second Holding:

On appeal, we review independently the question whether the trial court failed to instruct on a lesser included offense. Where a trial court has erred in failing to instruct on a lesser included offense, we review for prejudice under the standard set forth in Watson. Under this standard, the failure to instruct on a lesser included offense is not subject to reversal unless it is reasonably probable a more favorable result would have been obtained absent the error.

Authority:

People v. Avila (2009) 46 Cal.4th 680, 705

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

People v. Beltran (2013) 56 Cal.4th 935, 955

Third Holding:

Nonforcible lewd act under section 288(a), is a lesser included offense of forcible lewd act under section 288(b)(1). The crimes are distinguishable in that forcible lewd act requires the defendant to have committed the crime by means of force, violence, duress, menace, or fear.

Authority:

People v. Chan (2005) 128 Cal.App.4th 408, 421

People v. Griffin (2004) 33 Cal.4th 1015, 1026

Fourth Holding:

In this context, force means physical force substantially different from or substantially greater than that necessary to accomplish the act itself. Fear has been defined as (1) A feeling of alarm or disquiet caused by the expectation of danger, pain, disaster, or the like; terror; dread; apprehension and (2) Extreme reverence or awe, as toward a supreme power.

And duress as used in this context means a direct or implied threat of force, violence, danger, hardship or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to (1) perform an act which otherwise would not have been performed or, (2) acquiesce in an act to which one otherwise would not have submitted.

Authority:

People v. Cochran (2002) 103 Cal.App.4th 8, 13, disapproved on another ground in People v. Soto (2011) 51 Cal.4th 229, 248, fn. 12

People v. Cardenas (1994) 21 Cal.App.4th 927, 939–940

Fifth Holding:

On this record, there is simply no evidence that the defendant employed the requisite force, duress, or fear to commit the forcible lewd act charged in count 8.

Authority:

People v. Espinoza (2002) 95 Cal.App.4th 1287, 1319–1321

Sixth Holding:

Consequently, we must reverse the judgment and conviction for forcible lewd act under section 288(b)(1), as charged in count 8. Under settled law, the judgment will be modified to reflect a conviction for nonforcible lewd act under section 288(a), unless the People elect to retry the defendant on the greater charge and are successful.

Authority:

People v. Edwards (1985) 39 Cal.3d 107, 118

Seventh Holding:

The federal and state prohibitions against ex post facto laws apply to any statute that punishes as a crime an act previously committed which was not a crime when done or that inflicts greater punishment than the applicable law when the crime was committed.

It is the prosecution’s responsibility to prove to the jury that the charged offenses occurred on or after the effective date of the statute providing for the defendant’s punishment. When the evidence at trial does not establish that fact, the defendant is entitled to be sentenced under the formerly applicable statutes even if he raised no objection in the trial court.

And, where the prosecutor failed to establish at trial when the charged acts occurred, it would be inappropriate for an appellate court to review the record and select among acts that occurred before and after that date, or to infer that certain acts probably occurred after that date.

In sum, as to counts 8 and 10, the prosecution failed to present unambiguous evidence that the acts underlying these counts occurred after the law increasing the sentence range took effect. Given the ambiguity, the trial court was not permitted to impose the harsher penalty under the revised law as to these counts.

The defendant’s 10-year sentences on counts 8 and 10 therefore violate the ex post facto clause and resentencing is required on these counts. At resentencing, as to counts 8 and 10, the court must apply the sentencing provisions applicable before the statute was amended to increase the sentence range.

Authority:

People v. Hiscox (2006) 136 Cal.App.4th 253, 256, 261

Eighth Holding:

Because we conclude that the judgment must be reversed in part and this action must be remanded to the trial court for further proceedings, the defendant will ultimately be entitled to full resentencing.

Authority:

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

People v. Navarro (2007) 40 Cal.4th 668, 681 [Although the Court of Appeal’s prior remand order was for resentencing on the modified convictions only, we believe a remand for a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances.]

Abstracts and Minutes, Defenses, Sentencing, Sixth Amendment

Case 000827

Posted on by Gary McCurdy

Error and/or relief

The Three Strikes sentence is unauthorized because the prior strike allegation was never admitted or found true by the jury or court.

First Holding:

A defendant has a statutory right to a jury trial on the issue of whether he suffered an alleged prior conviction. He may waive that right and submit to a court trial or admit the truth of the prior conviction allegation. Here, there is nothing in the record showing there was any trial on the prior strike. After returning their verdicts on the substantive offenses, the jurors were discharged without considering the strike.

Authority:

PEN 1025(b)

PEN 1158

People v. Epps (2001) 25 Cal.4th 19, 25

Second Holding:

Had the matter been brought to the attention of the court, the court could have convened a new jury to try the prior conviction allegation.

Authority:

People v. Saunders (1993) 5 Cal.4th 580, 595–596 [when the court improvidently discharged the jurors before they decided prior conviction allegations, and the defense failed to timely object, double jeopardy did not bar trial of the allegations before a new jury]

Third Holding:

There are cases in which the reviewing court has determined the trial court impliedly found true an enhancement allegation by imposing the enhancement at sentencing. But in such cases, the trial court was at least presented evidence supporting the allegation.

The same is not true here. While the prosecutor at one point represented that he had the certified 969b packet for the prior, there is no indication he presented those documents, or any other evidence, to the court.

And although the minute order of sentencing reflects a true finding by the court on the prior strike, we cannot rely on those entries because there is no oral record of the court making those findings.

Authority:

People v. Clair (1992) 2 Cal.4th 629, 691, fn. 17

People v. Chambers (2002) 104 Cal.App.4th 1047

People v. Zackery (2007) 147 Cal.App.4th 380, 385–386

Fourth Holding:

There is no constitutional or procedural bar precluding the prosecution from retrying a prior strike allegation following appellate reversal for insufficient evidence.

Authority:

People v. Barragan (2004) 32 Cal.4th 236, 239 [constitutional requirement of fundamental fairness, equitable principles of res judicata and law of the case, and relevant statutory provisions do not bar retrial of prior strike allegation]

People v. Monge (1997) 16 Cal.4th 826, 829 [state and federal prohibitions against double jeopardy do not bar retrial of a prior conviction allegation in a noncapital case]

Monge v. California (1998) 524 U.S. 721

Discretion, Standard of review, Sufficiency of and substantial evidence

Case 000825

Posted on by Gary McCurdy

Error and/or relief

We conclude the finding of unreasonable risk to public safety is not supported by substantial evidence and the trial court abused its discretion in finding the defendant unsuitable for diversion.

(Gary note: I have set out the various holdings and authorities below that represent the applicable law and principles, but I have not recited the court’s analysis of the facts in this case on which it based there was no substantial evidence to support the court’s conclusion that the defendant was a danger to the community. Suffice it to say, the appellate court found the court’s reasoning inadequate to support denial of the request for mental health diversion.)

First Holding:

Section 1001.36 authorizes courts to grant pretrial mental health diversion to defendants who meet six qualifying requirements. The stated purpose of the diversion statute is to promote all of the following: (a) Increased diversion of individuals with mental disorders to mitigate the individuals’ entry and reentry into the criminal justice system while protecting public safety. (b) Allowing local discretion and flexibility for counties in the development and implementation of diversion for individuals with mental disorders across a continuum of care settings. (c) Providing diversion that meets the unique mental health treatment and support needs of individuals with mental disorders.

If the defendant successfully completes diversion, including having in place a plan for long-term mental health care, the criminal charges shall be dismissed. However, if after diversion is granted, a qualified mental health expert concludes the defendant is performing unsatisfactorily in the assigned program, the court shall, after notice to the defendant, hold a hearing to determine whether criminal proceedings should be reinstated or treatment modified.

Authority:

PEN 1001.36

PEN 1001.35

People v. Williams (2021) 63 Cal.App.5th 990, 995

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

People v. Whitmill (2022) 86 Cal.App.5th 1138, 1149–1150

Second Holding:

Effective January 1, 2023, mental health diversion requires the trial court to find that the defendant is both eligible for diversion and suitable for the program. A defendant is eligible if they meet two criteria: first, the defendant must have been diagnosed with a mental disorder as identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders, within the last five years, by a qualified mental health expert.

Second, the disorder must be a significant factor in the commission of the charged offense. 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)

Third Holding:

This presumption cannot be overcome by the mere absence of evidence demonstrating the defendant’s mental illness was a factor in the alleged offenses. If a mere absence of evidence were sufficient, the court would effectively be impermissibly shifting the burden to the defendant to affirmatively prove that his mental disorder contributed to the offenses.

Authority:

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

Gomez v. Superior Court (2025) 113 Cal.App.5th 671, 688–689

Fourth Holding:

If the defendant satisfies the statutory eligibility requirements, the court must then consider whether the defendant is suitable for pretrial diversion. The four criteria to assess suitability are grouped in section 1001.36, subdivision (c). As with the diagnosis eligibility requirement, the first of these relies on input from a medical professional, in this instance the opinion of a qualified mental health expert, that the symptoms of defendant’s mental disorder would respond to mental health treatment.

The second and third requirements are satisfied if the defendant agrees to waive their speedy trial rights and to comply with treatment as a condition of diversion. Only the fourth requirement necessitates a trial court finding, to wit, that the defendant will not pose an unreasonable risk of danger to public safety if treated in the community.

Authority:

PEN 1001.36(c)

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 892–894

Fifth Holding:

Even here, however, the Legislature has narrowly defined the applicable criteria. Borrowing from sections 1170.18(c) and 667(e)(2)(C)(iv), an unreasonable risk to public safety means a likelihood that the defendant will commit one of the violent felonies specifically enumerated in the statute.

The listed felonies are colloquially known as “super strikes.” Super strikes are a narrowly drawn subset of violent felonies involving extreme violence. We note that the lack of a criminal record is strong evidence that a defendant is unlikely to commit a future super strike offense.

Authority:

PEN 1001.36(c)(4)

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

People v. Williams (2021) 63 Cal.App.5th 990, 1001

People v. Moine (2011) 62 Cal.App.5th 440, 450

People v. Hoffman (2015) 241 Cal.App.4th 1304, 1310

Sixth Holding:

Assuming the defendant is both eligible and suitable, the trial court must also be satisfied that the recommended inpatient or outpatient program of mental health treatment will meet the specialized mental health treatment needs of the defendant. This is not an additional eligibility or suitability requirement the defendant must meet. Rather, section 1001.36(f)(1) read as a whole appears to contemplate an ongoing assessment to assure that defendant will receive appropriate treatment for their particular conditions as part of the diversion program.

Authority:

PEN 1001.36(f)(1)(A)(i)

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

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

Seventh Holding:

Finally, even if a defendant has made a prima facie showing that all the express statutory eligibility and suitability requirements are met, the court may still exercise its discretion to deny diversion. But this residual discretion is not unfettered; it must be exercised consistent with the principles and purpose of the governing law. Where the court chooses to exercise that residual discretion to deny diversion, its statement of reasons should reflect consideration of the underlying purposes of the statute and explain why diversion would not meet these goals.

Authority:

People v. Qualkinbush (2022) 79 Cal.App.5th 879, 891

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

Eighth Holding:

We review the trial court’s factual findings as to the enumerated statutory criteria for substantial evidence. Under this deferential standard of review, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends.

Authority:

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

Ninth Holding:

We review the trial court’s ultimate decision whether to grant mental health diversion for an abuse of discretion. By its terms, section 1001.36 is designed to encourage trial courts to broadly authorize pretrial mental health diversion, providing treatment for qualifying mental disorders that result in criminal behavior. As with any principled exercise of discretion, the court must utilize the appropriate criteria consistent with the principles and purposes of the governing law, only drawing conclusions supported by substantial evidence.

Authority:

People v. Gerson (2022) 80 Cal.App.5th 1067, 1080

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

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