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Veterans sentenced to indeterminate terms are not eligible for resentencing under section 1170.911

People v. Stewart (Cal. Ct. App., July 9, 2021, No. E074907) 2021 WL 2883176, at *1

Summary: Stewart was honorably discharged from the Army in 1976 and suffers from schizophrenia related to his military service. In 1986 and a1992, he was convicted of first degree burglary. In 2001, after being convicted on two counts of spousal battery, he was sentenced, as a third-striker, to two consecutive terms of 25 years to life in prison.

In 2018, the Legislature amended section 1170.911 to allow  convicted veterans who suffers from a specified disorder as a result of their military service to petition for resentencing, so that that disorder may be considered as a mitigating factor when imposing a determinate term.

Stewart filed a petition for resentencing under section 1170.91. The trial court denied the petition because he had been sentenced to indeterminate terms.

Stewart contends that this was error because, if resentenced, there was a possibility that he could be sentenced to determinate terms. Stewart argues that he could bring a motion under People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 53 Cal.Rptr.2d 789, 917 P.2d 628 to strike one or more of his strike priors (Romero motion). The court also  considered whether he would be entitled to be sentenced to determinate terms under Proposition 36 and concluded that neither possibility was open to him. The trial court therefore did not err by denying the petition.

Petition for resentencing under section 1170.91in the trial court

In 2019, Stewart filed a petition for resentencing pursuant to section 1170.91. 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.

The trial court denied the petition; it ruled that section 1170.91 did not apply because petitioner had been sentenced to indeterminate terms.

Stewart’s eligibility for a determinate term under 1170.91

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 It provides:

“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.

“(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.

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, 272 Cal.Rptr.3d 793 held that “section 1170.91 only applies to determinate terms imposed under section 1170, subdivision (b). [Citation.]” (Id. at p. 843, 272 Cal.Rptr.3d 793.)

Here, when Stewart 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. And the only possible penalties for his prior conviction enhancements and his prior prison term enhancement — although determinate — were fixed terms of five years and one year, respectively. (§§ 667, subd. (a), 667.5, subd. (b).) There was no way the trial court could have sentenced him to a determinate triad term.

Section 1170.91, however, does not look to whether the petitioner was originally sentenced to a determinate triad term. It says “when imposing a term under subdivision (b) of Section 1170.” (§ 1170.91, subd. (a), italics added.) Thus, it looks to whether the petitioner is eligible for resentencing to a determinate triad term. We have considered two arguments that petitioner could, at least potentially, be resentenced to a determinate term.

The Possibility of a New Romero Motion.

Stewart’s  counsel argued that, at resentencing, the trial court could grant a Romero motion, which would entitle petitioner to determinate sentencing.

The court disagreed.  Section 1170.91 is not a vehicle for obtaining the opportunity to make a Romero motion. We repeat, it requires the trial court, if resentencing is granted, to consider the petitioner’s military-related disorder “as a factor in mitigation when imposing a term under subdivision (b) of [s]ection 1170.” (§ 1170.91, subd. (a), italics added; see also id., subd. (b)(1).) It does not require the trial court to consider it when deciding whether to impose a term under section 1170, subdivision (b). In other words, granting a Romero motion is not imposing a term. The trial court must consider the military-related disorder as a mitigating factor only when making a choice from a triad.

The Possibility of Resentencing Under Proposition 36

In 2012, the electorate adopted Proposition 36. It substantially modified the Three Strikes Law and  provides that a third-striker is subject to an indeterminate term of 25 years to life if and only if the current offense is a serious or violent felony. (§§ 667, subds. (e)(2)(A)(ii), (e)(2)(C), 1170.12, subds. (c)(2)(A)(ii), (c)(2)(C).) In other cases, unless disqualified,  a third-striker is subject to the same penalty as a second-striker: double the term otherwise provided. (§§ 667, subds. (e)(1), (e)(2)(C), 1170.12, subd. (c)(1), (c)(2)(C).) Stewart’s current offenses are not serious or violent.

Proposition 36, however, specifies a number of factors that disqualify a third-striker from this more lenient sentencing. (§§ 667, subd. (e)(2)(C), 1170.12, subd. (c)(2)(C).) “[T]he prosecution” must “plead[ ] and prove[ ]” these disqualifying factors. (Ibid.) One is that “[d]uring the commission of the current offense, the defendant … intended to cause great bodily injury to another person.” (§§ 667, subd. (e)(2)(C)(iii), 1170.12, subd. (c)(2)(C)(iii).)

Proposition 36 also allows a person “presently serving” an indeterminate sentence under the old Three Strikes Law to petition for resentencing. (§ 1170.126.) The same factors that disqualify a third-striker from more lenient sentencing also disqualify a third-striker from more lenient resentencing (§ 1170.126, subd. (e)(2)), including that “[d]uring the commission of the current offense, the defendant … intended to cause great bodily injury to another person.” (§§ 667, subd. (e)(2)(C)(iii), 1170.12, subd. (c)(2)(C)(iii).)

But there is one significant difference: The prosecution need not have pleaded and proved the disqualifying factor at trial. Rather, it is sufficient that the trial court finds the disqualifying factor, beyond a reasonable doubt, when it rules on the petition. (People v. Frierson (2017) 4 Cal.5th 225, 234-240, 226 Cal.Rptr.3d 582, 407 P.3d 423; People v. Conley (2016) 63 Cal.4th 646, 659-661, 203 Cal.Rptr.3d 622, 373 P.3d 435; see also People v. Osuna (2014) 225 Cal.App.4th 1020, 1033-1038, 171 Cal.Rptr.3d 55, disapproved on other grounds in People v. Frierson, supra, 4 Cal.5th at p. 240, fn. 8, 226 Cal.Rptr.3d 582, 407 P.3d 423.) Here, the trial court denied petitioner’s petition under section 1170.126 because it found that he intended to cause great bodily injury.

People v. Conley, supra, 63 Cal.4th 646, 203 Cal.Rptr.3d 622, 373 P.3d 435 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, 203 Cal.Rptr.3d 622, 373 P.3d 435.)

Stewart 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).

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.

Section  1170.91 does not override section 1170.126. Even though Stewart 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.

 

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