People v. Muller CA3

Filed 12/17/21 P. v. Muller CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (El Dorado) ----

THE PEOPLE, C093088

Plaintiff and Respondent, (Super. Ct. No. P12CRF0469)

v.

WILLIAM GREGORY MULLER,

Defendant and Appellant.

In 2014, defendant William Gregory Muller pleaded no contest to one count of committing a lewd act and admitted a prior serious felony conviction allegation. Defendant agreed to a stipulated sentence of six years, doubled to 12 years pursuant to Penal Code section 667. (Statutory section citations that follow are to the Penal Code.) Effective January 1, 2019, the Legislature amended section 1170.91 to provide that individuals sentenced prior to January 1, 2015 are eligible for resentencing if they are or

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were members of the military and they suffered trauma as a result of that service that was not considered as a factor in mitigation at the time of sentencing. Petitioner appeals the trial court’s denial of his request for resentencing on the basis that the trial court misunderstood the scope of its discretion under section 1170.91 by refusing to consider his postconviction good behavior and emphasizing the relatively short duration of his military career. Finding no error, we affirm the judgment.

FACTS AND HISTORY OF THE PROCEEDINGS For the reasons detailed in our discussion, we need not provide a full recitation of the facts relating to defendant’s crimes. In 2013, defendant was charged with two counts of lewd acts upon a child (§ 288, subd. (a)), one count of transient’s violation of registration law (§ 290.011), and one count of failure to register (§ 290.013). As to counts one and two, a special allegation was made of a prior conviction for a sex offense listed in section 667.61 and of a prior serious felony conviction (§ 667, subds. (b)-(l)). In 2014, defendant pleaded no contest to one count of lewd acts upon a child, and admitted the special allegation of a prior serious felony conviction. The court dismissed the remaining counts. Defendant agreed to a stipulated sentence of six years which was doubled to 12 years pursuant to section 667. Effective in 2015, the Legislature added section 1170.91 which, in subdivision (a), provides, in part, “If the court concludes that a defendant convicted of a felony offense 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, the court shall consider the circumstance as a factor in mitigation when imposing a term under subdivision (b) of Section 1170 . . . .” (Stats. 2014, ch. 163, § 2.) Effective January 1, 2019, the Legislature amended section 1170.91 to add subdivision (b) which provides that a person otherwise eligible for subdivision (a) who is