two prior serious felony conviction enhancements (§ 667, subd. (a)), and one prior prison
term enhancement (§ 667.5, subd. (b)).2 (See People v. Stewart, supra, at pp. [1], [3],
fn. 4.)
At sentencing in 2001, petitioner’s Romero motion was denied. He was sentenced
to a total of 51 years to life in prison, calculated as follows:
(1) Spousal batteries: Two terms of 25 years to life, to be served consecutively.
(2) Aggravated assault: Stayed pursuant to section 654.3
(3) Simple battery: One year in jail.
(4) Prior serious felony conviction enhancements: Two terms of five years,
stayed.
(5) Prior prison term enhancement: One year, to be served consecutively. (See
People v. Stewart, supra, at pp. [1], [2]-[3].)
2 Petitioner also admitted two prior serious felony conviction enhancements. (§ 667, subd. (a).) However, he was not actually convicted of any serious felony, so these enhancements did not apply and were not imposed. (See People v. Stewart, supra, at pp. [1], [3].) 3 The record is unclear as to what term the trial court imposed on this count before staying it. However, the only legally authorized term was 25 years to life. (§§ 667, subd. (e)(2)(A)(ii), 1170.12, subd. (c)(2)(A)(ii).)
3
In 2012, Proposition 36 was enacted. As we will discuss in more detail in part II,
post, it amended the Three Strikes Law so as to lessen the punishment for third-strikers
under certain circumstances. It also enacted section 1170.126, which allows a person
sentenced under the pre-amendment version of the Three Strikes Law to petition for
resentencing under the post-amendment version.
Petitioner duly filed a petition for resentencing under section 1170.126. The trial
court denied the petition because it found that he fell within an exclusion to section
1170.126, in that“‘[d]uring the commission of the current offense’ he ‘intended to cause
great bodily injury to another person.’” (People v. Stewart (July 29, 2014, E058988)
2014 Cal. App. Unpub. LEXIS 5293, at [2].)
In 2019, he filed a petition for resentencing pursuant to section 1170.91. Counsel
was appointed for him.
He submitted documentary proof that: (1) he had been honorably discharged from
the Army after serving from 1974 through 1976; (2) he had later been determined to be
disabled by schizophrenia related to his military service; and (3) the fact that he had
schizophrenia as a result of his military service had not been considered as a mitigating
factor when he was originally sentenced.
The People conceded that, but for the fact that petitioner had been sentenced to
indeterminate terms, he had made a prima facie case that he was entitled to relief.
After hearing argument, the trial court denied the petition; it ruled that section
1170.91 did not apply because petitioner had been sentenced to indeterminate terms.
4
II
PETITIONER’S ELIGIBILITY FOR A DETERMINATE TERM
Section 1170.91 was enacted in 2014. The original statute (which is now
subdivision (a)) allows a court, “when imposing a term under subdivision (b) of Section
1170,” to consider the fact that the defendant “is, or was, a member of the United States
military who may be suffering from sexual trauma, traumatic brain injury, post-traumatic
stress disorder, substance abuse, or mental health problems as a result of his or her
military service . . . as a factor in mitigation . . . .” (§ 1170.91, subd. (a); see also former
§ 1170.91, Stats. 2014, ch. 163, § 2, p. 2228.)
In 2018, subdivision (b) was added. It permits retrospective relief from a final
judgment, under certain conditions. Specifically, it provides, as relevant here:
“A person currently serving a sentence for a felony conviction . . . who is, or was,
a member of the United States military and who may be suffering from sexual trauma,
traumatic brain injury, post-traumatic stress disorder, substance abuse, or mental health
problems as a result of his or her military service may petition for a recall of sentence . . .
to request resentencing pursuant to subdivision (a) if the person meets both of the
following conditions:
“(A) The circumstance of suffering from sexual trauma, traumatic brain injury,
post-traumatic stress disorder, substance abuse, or mental health problems as a result of
the person’s military service was not considered as a factor in mitigation at the time of
sentencing.
5
“(B) The person was sentenced prior to January 1, 2015.” (§ 1170.91, subd. (b).)
Significantly, subdivision (b) permits resentencing only “pursuant to subdivision
(a)”; and subdivision (a) applies only “when imposing a term under subdivision (b) of
Section 1170.” Subdivision (b) of Section 1170 applies when a statute provides for a
determinate upper, mid, and lower term; it provides that, in selecting the appropriate
term, the trial court must consider factors in mitigation and aggravation, if any.4
The only reasonable interpretation of this language is that a petitioner is not
eligible for relief under section 1170.91 unless he or she would be resentenced under
section 1170, subdivision (b) — i.e., unless the potential penalty for at least one element
of the sentence is a determinate triad. Consistent with this interpretation, People v.
Estrada (2020) 58 Cal.App.5th 839 held that “section 1170.91 only applies to
determinate terms imposed under section 1170, subdivision (b). [Citation.]” (Id. at
p. 843.)
Here, when petitioner was originally sentenced, as a third-striker, the only possible
penalty for each of his felony convictions was an indeterminate term of 25 years to life.
4 In more detail, section 1170, subdivision (b) provides:
“When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court. . . . In determining the appropriate term, the court may consider the record in the case, the probation officer’s report, other reports, including reports received pursuant to Section 1203.03, and statements in aggravation or mitigation submitted by the prosecution, the defendant, or the victim, or the family of the victim if the victim is deceased, and any further evidence introduced at the sentencing hearing. The court shall select the term which, in the court’s discretion, best serves the interests of justice.”
We return, then, to the main question of whether petitioner, if resentenced, could
be sentenced to a determinate term pursuant to Proposition 36.
11
People v. Conley, supra, 63 Cal.4th 646 held that “third strike defendants who
were sentenced under the Three Strikes law before November 7, 2012, but whose
judgments were not yet final as of that date, . . . are not entitled to automatic
resentencing, but instead may seek resentencing by petitioning for recall of sentence
under section 1170.126.” (Id. at p. 652.)
Conley explained that, under In re Estrada (1965) 63 Cal.2d 740, when a statutory
amendment ameliorates punishment, there is ordinarily a presumption — “in the absence
of any textual indication of the Legislature’s intent” — that the Legislature intended it to
apply in all cases not yet final on appeal. (People v. Conley, supra, 63 Cal.4th at p. 656.)
However, section 1170.126 rebuts that presumption. (People v. Conley, supra, 63
Cal.4th at pp. 656-659.) “Section 1170.126 creates a special mechanism that entitles all
persons ‘presently serving’ indeterminate life terms imposed under the prior law to seek
resentencing under the new law. By its terms, the provision draws no distinction between
persons serving final sentences and those serving nonfinal sentences, entitling both
categories of prisoners to petition courts for recall of sentence under the Act.” (People v.
Conley, supra, 63 Cal.4th at p. 657.)
Technically, Conley’s holding applies only to a defendant whose judgment was
not final as of November 7, 2012. Nevertheless, its reasoning applies to petitioner. He is
“presently serving” an indeterminate term under the unamended Three Strikes Law.
(§ 1170.126, subds. (a), (b).) Thus, his only route to relief would be to file a petition
under section 1170.126 (which he has already done unsuccessfully).
12
We may assume that, if petitioner were granted relief under section 1170.91, that
would mean that the judgment against him is no longer final. (Compare People v.
Padilla (2020) 50 Cal.App.5th 244, 251-256 [resentencing after grant of habeas petition
reopens finality of sentence so as to entitle defendant to benefits of ameliorative
legislation], review granted Aug. 26, 2020, S263375, with People v. Federico (2020) 50
Cal.App.5th 318, 325-328 [resentencing under section 1170, subdivision (d) does not
reopen finality of sentence so as to entitle defendant to benefits of ameliorative
legislation], review granted Aug. 26, 2020, S263082.) Even if so, however, under
Conley, the Legislature intended that a person “presently serving” an indeterminate term
under the unamended Three Strikes Law — even under a judgment that is not final —
should not be entitled to any of the benefits of Proposition 36, other than the right to
petition for resentencing under section 1170.126.
In sum, we conclude that section 1170.91 does not override section 1170.126.
Hence, even though petitioner is otherwise eligible for relief under section 1170.91, he
could not be sentenced to a determinate term under Proposition 36. It follows that he is
not eligible for relief under section 1170.91 at all.
13
III
DISPOSITION
The order appealed from is affirmed.
CERTIFIED FOR PUBLICATION RAMIREZ P. J.
We concur:
MILLER J.
SLOUGH J.
14
AI Brief
AI-generated · verify before citing
Holding. A veteran sentenced to an indeterminate term under the Three Strikes Law is ineligible for resentencing under Penal Code section 1170.91 because that statute only applies to sentences involving a determinate triad term.
Issues
Whether a defendant sentenced to an indeterminate term is eligible for resentencing under Penal Code section 1170.91.
Whether a Romero motion or Proposition 36 provides a pathway for a third-striker to receive a determinate sentence eligible for section 1170.91 relief.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“The only reasonable interpretation of this language is that a petitioner is not eligible for relief under section 1170.91 unless he or she would be resentenced under section 1170, subdivision (b)”
“Section 1170.91 is not a vehicle for obtaining the opportunity to make a Romero motion.”
“In sum, we conclude that section 1170.91 does not override section 1170.126. Hence, even though petitioner is otherwise eligible for relief under section 1170.91, he could not be sentenced to a determinate term under Proposition 36.”