We are happy to announce that we have resumed normal office hours from 9:30 AM to 5:30 PM Monday through Thursday, to assist you with your essential legal matters and needs. For the short term we will remain closed on Fridays. We encourage clients to try and communicate with us by phone and email. If you do need to come into the office, we require face masks and we are maintaining social distancing.

Resentencing of veterans under Section 1170.91 Is Unavailable in a Plea Bargain to a Stipulated Term of Years

People v. Brooks (Cal. Ct. App., Dec. 22, 2020, No. A158988) 2020 WL 7586811, at *1

Summary: Jason Brooks appealed  the denial of a petition seeking recall of his sentence pursuant to Penal Code section 1170.91. Brooks agreed to a stipulated term of years in a plea bargain 13 years ago, and  sought recall of his sentence under section 1170.91, subdivision (b)(1), invoking an amendment to section 1170.91 enacted two years ago. The Court of Appeal upheld the summary denial of his petition.


In 2007, Brooks was charged with 21 counts of robbery (§ 211), with most counts carrying an enhancement for personal use of a firearm (§§ 12022.5, subd. (a), 12022.53, subd. (b)). He  pled no contest to three counts of second degree robbery (§§ 211, 212.5) together with the accompanying firearm use allegations (§ 12022.5), in exchange for a stipulated prison term of 19 years eight months. At the sentencing hearing, no testimony was taken or evidence introduced of his military service or substance abuse issues.

In 2019, Brooks filed a petition to recall his sentence pursuant to section 1170.91, subdivision (b)(1). Brooks alleged that (1) he was a member of the United States military, (2) he developed a substance abuse problem as a result of such service, (3) he was sentenced before January 1, 2015, and (4) neither his military service nor his substance abuse was considered as mitigation during his sentencing hearing. Brooks requested  a resentencing hearing in which these newly recognized mitigating factors could be taken into account. The trial court  denied relief on October 18, 2019, noting  that Brooks’s military service and his drug use were known to the sentencing court before his sentence was imposed, that Brooks never requested those facts be considered in mitigation, and that in any event there was no proof his drug use was caused by his military service. The specific legal ground the court cited for summary dismissal was that, in his plea bargain, Brooks agreed to a stipulated term, and as a result, the court had no power to resentence him.

Section 1170.91-resentencing for trauma resulting from military service

Under section 1170, subdivision (b), “[w]hen 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.” (§ 1170, subd. (b).) In 2014, the Legislature enacted former section 1170.91 [now identified as § 1170.91, subd. (a)] (Stats. 2014, ch. 163, § 2), which mandates consideration of trauma resulting from military service as a mitigating factor when a court exercises determinate sentencing triad discretion. (See People v. King (2020) 52 Cal.App.5th 783, 786, 266 Cal.Rptr.3d 571 (King); People v. Bonilla-Bray (2020) 49 Cal.App.5th 234, 238, 262 Cal.Rptr.3d 754).

In 2018, the Legislature amended section 1170.91 to add a retroactivity clause and a procedure for resentencing. (Stats. 2018, ch. 523, § 1; § 1170.91, subd. (b); King, supra, 52 Cal.App.5th at p. 788, 266 Cal.Rptr.3d 571; People v. Bonilla-Bray, supra, 49 Cal.App.5th at p. 238, 262 Cal.Rptr.3d 754.) Subdivision (b) allows a person currently serving a prison sentence for a felony conviction, “whether by trial or plea,” to petition for a recall of his sentence provided he meets the following initial requirements: (1) he is or was a member of the United States military, and (2) he “may be suffering from sexual trauma, traumatic brain injury, post-traumatic stress disorder, substance abuse, or mental health problems as a result of [such] military service ….” (§ 1170.91, subd. (b).)

Under section 1170.91, subdivision (b) petitioner must allege: “(A) [t]he 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,” and “(B) [t]he person was sentenced prior to January 1, 2015.” (§ 1170.91, subd. (b).) Provided that the petition so alleges, the sentencing judge or in his or her absence an assigned judge of the sentencing court “shall determine, at a public hearing” held upon proper notice, whether the petitioner satisfies the requisite criteria. (Ibid.) If those criteria are met, the petitioner may be resentenced, in the court’s discretion, with trauma resulting from military service taken into account as a mitigating factor. (Ibid.)

Resentencing of veterans under Section 1170.91 Is Unavailable in a Plea Bargain to a Stipulated Term of Years

The dispositive issue in this appeal is whether the resentencing authority granted by section 1170.91, subdivision (b), which applies to sentences based on convictions suffered by “trial or plea” (§ 1170.91, subd. (b)(1)), extends to sentences based on final convictions by plea agreement specifying a stipulated imprisonment term. The Court held it does not.

The Court saw no need to delve beyond the text of section 1170.91 to resolve the issue.

Brooks seeks recall of a sentence imposed based on his agreement to a specific term of years. He reads section 1170.91, subdivision (b) broadly, arguing that it contemplates relief for all plea types. (See § 1170.91, subd. (b).) The Attorney General counters that Brooks is precluded from any judicial exercise of section 1170.91 resentencing discretion because his plea agreement rests on a stipulated sentence. Thus, the Attorney General argues, “[t]here was no judicial sentencing discretion applicable to [Brooks then], and there is none available now” because any resentencing would unlawfully modify the terms of the plea agreement while otherwise leaving the agreement intact.

The Court agreed with the Attorney General. “Where the plea is accepted by the prosecuting attorney in open court and is approved by the court, … the court may not proceed as to the plea other than as specified in the plea.” (§ 1192.5)  When a court accepts a plea bargain, the court must impose a sentence within the limits of that bargain. (People v. Segura (2008) 44 Cal.4th 921, 931, 80 Cal.Rptr.3d 715, 188 P.3d 649; see People v. Cunningham (1996) 49 Cal.App.4th 1044, 1047, 57 Cal.Rptr.2d 179.) Thus, a court may not modify the terms of a plea agreement while otherwise leaving the agreement intact, “nor may the court effectively withdraw its approval by later modifying the terms of the agreement it had approved.” (Segura, supra, at pp. 931–932, 80 Cal.Rptr.3d 715, 188 P.3d 649.) “ ‘ “Should the court consider the plea bargain to be unacceptable, its remedy is to reject it, not to violate it, directly or indirectly.” ’ ” (Stamps, supra, 9 Cal.5th at p. 701, 264 Cal.Rptr.3d 769, 467 P.3d 168, quoting People v. Cunningham, supra, 49 Cal.App.4th at p. 1047, 57 Cal.Rptr.2d 179; accord People v. Woods (2017) 12 Cal.App.5th 623, 631, 242 Cal.Rptr.3d 280 [“the court was required to withdraw its approval of the plea bargain in its entirety; it was not free to enforce some portions of it but not others”].) It follows that unless the Legislature intended otherwise, a retroactive resentencing statute incorporates long-standing law that “a court cannot unilaterally modify an agreed-upon term by striking portions of it ….” (Stamps, supra, 9 Cal.5th at p. 701, 264 Cal.Rptr.3d 769, 467 P.3d 168.)

The plain language of section 1170.91 is clear that any resentencing relief shall occur through the mechanisms of the determinate sentencing triad. (See King, supra, 52 Cal.App.5th at p. 788, 266 Cal.Rptr.3d 571; § 1170, subd. (b).) In this circumstance, any exercise of discretion reducing Brooks’s sentence would necessarily modify the terms of his plea agreement while otherwise leaving the plea agreement intact. Nothing in the statute suggests an intent to overturn, sub silentio, long-standing plea-bargaining law binding courts to the agreements they approve.

The Court did not read section 1170.91, subdivision (b) as an open-ended directive to set plea negotiations at large so that he may, once again, have the opportunity to claim drug addiction in a renewed effort to negotiate a lower term.

The resentencing authority conferred by section 1170.91, subdivision (b) is inherently incompatible with the recognized finality of plea agreements to a specified term of years.

Contact Information