People v. PixleyPeople v. Pixley
Petitioner argues that the language of section 1170.91, subdivision (b), which allows “[a] person currently serving a sentence for a felony conviction, whether by trial or plea” to petition means that the existence of a plea agreement can never bar resentencing. He also argues that, if the petition were granted, the trial court could withdraw its approval of the plea agreement. We disagree on both points. Hence, we will affirm.
I
STATEMENT OF THE CASE
In 2005, pursuant to a plea bargain, petitioner pleaded guilty to six counts of a forcible lewd act on a child under 14. (
Section 1170.91 went into effect on January 1, 2019. (Stats. 2018, ch. 523, § 1, p. 3830.) Later in 2019, petitioner filed a petition for resentencing pursuant to section 1170.91. He alleged that he had served in the United States Navy and that he suffered from post-traumatic stress disorder (PTSD) and substance abuse as a result.
In 2020, the trial court denied the petition. It ruled that petitioner was not entitled to resentencing because he had entered into a plea bargain that included a stipulated sentence.
II
PETITIONER IS NOT ENTITLED TO RESENTENCING
Petitioner contends that he is eligible for resentencing even though he is serving a stipulated sentence.
Section 1170.91, subdivision (b)(1) allows a person convicted of a felony who may be suffering from certain kinds of trauma (including PTSD and substance abuse) caused by his or her military service to petition for a recall of sentence for the purpose of resentencing “pursuant to subdivision (a) . . . .”
Section 1170.91, subdivision (a), in turn, provides that, “when imposing a term under subdivision (b) of Section 1170,” the trial court may consider such service-connected trauma as a mitigating factor. (
It explained: “When a defendant who enters into a plea also agrees to a stipulated sentence, upon accepting the plea, the trial court may not proceed as to the plea other than as specified in the plea.” (King, supra, 52 Cal.App.5th at pp. 790-791; see also
People v. Brooks (2020) 58 Cal.App.5th 1099 (Brooks) followed King. (Brooks, supra, at pp. 1107-1109.) The defendant in Brooks “center[ed] his argument . . . on the language in section 1170.91 . . . , ‘whether by trial or plea’ . . . .” (Brooks, supra, 58
Brooks responded: “The analogy Brooks would have us draw to Stamps and Harris is inapt, since those cases involved scenarios in which resentencing courts were asked to reject stipulated plea agreements categorically under retroactively conferred resentencing authority, thus eliminating the legal basis for the conviction under section 1170.18 (e.g., Harris) or providing new discretion to dismiss an enhancement under section 1385 (e.g., Stamps). When the Legislature makes an ameliorative change in the law that specifically contemplates the change will apply to all convictions, final or nonfinal, whether suffered by trial or plea, resentencing eligibility will follow, even for defendants whose convictions have been final for many years. But the problem Brooks has is that section 1170.91 does not eliminate the legal basis for his conviction or grant the trial court unfettered discretion to reconsider an aspect of his sentence that would in
Petitioner here similarly relies on Harris. Harris is not controlling, for the reasons stated in Brooks. We also note that the reasoning in Harris turned on the particular language of Proposition 47: “[T]he section contains no exceptions and, specifically, no exception for someone convicted by a plea that was the result of a plea agreement. . . . [¶] Moreover, [the] section . . . provides that a person meeting [its] requirements . . . ‘shall’ be resentenced ‘unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety.’ . . . ; the statute provides no other safety valve such as rescinding a plea bargain.” (Harris, supra, 1 Cal.5th at pp. 991-992.) Here, by contrast, section 1170.91 contains no similarly mandatory language. It provides for limited and specific relief — “a recall of sentence” to “impos[e] a term under subdivision (b) of Section 1170.” If the trial court granted such relief here, it would have to reimpose the same sentence as it originally imposed.
Petitioner also relies on Stamps. Stamps, too, is not controlling, for the reasons stated in Brooks. We also note that Stamps did not involve any statute providing for resentencing. Rather, there, the defendant was entitled to resentencing because Senate Bill No. 1383 had gone into effect before his conviction was final. (Stamps, supra, 9 Cal.5th at pp. 698-699.) Accordingly, “[t]he [trial] court‘s authority to withdraw its
A dissenting justice in Brooks argued that there were two ways the defendant could be resentenced other than according to the plea. First, the prosecutor might agree to modify the plea. (Brooks, supra, 58 Cal.App.5th at p. 1111 [dis. opn. of Pollak, P.J.].) Second, the trial court might withdraw its approval of the plea. The dissent noted that a recall of sentence under section 1170, subdivision (d) allows a court to resentence a defendant “‘as if they had not previously been sentenced‘“; it argued that a recall of sentence under section 1170.91, subdivision (b) should have the same scope. (Brooks, supra, 58 Cal.App.5th at pp. 1111 & 1112, fn. 4 [dis. opn. of Pollak, P.J.].)
The majority disagreed: “Section 1170, subdivision (d), applies only in narrow circumstances not present here: When the sentencing court, on its own motion, recalls the sentence within 120 days of the commitment, or ‘at any time upon the recommendation of the secretary or the Board of Parole Hearings in the case of state prison inmates, the county correctional administrator in the case of county jail inmates, or the district attorney of the county in which the defendant was sentenced.’ [Citation.] Because none of those situations is involved when a defendant petitions for resentencing under section 1170.91, subdivision (b), the reference in section 1170, subdivision (d) to resentencing the defendant as if he had not previously been sentenced is irrelevant.” (Brooks, supra, 58 Cal. App.5th at p. 1108, fn. 2.)
Brooks did not respond to the dissenting justice‘s suggestion that the prosecutor might agree to modify the plea. However, a prosecutor who is sufficiently moved by a petitioner‘s showing of service-connected trauma could always agree to renegotiate the plea and stipulate to the grant of the petition. Alternatively, the prosecutor could stipulate to the grant of a writ of habeas corpus based on defense counsel‘s failure to assert service-connected trauma at the original sentencing.
In sum, then, the trial court correctly ruled that petitioner‘s agreement to a negotiated sentence made him ineligible for resentencing under section 1170.91.
III
DISPOSITION
The order appealed from is affirmed.
CERTIFIED FOR PUBLICATION
RAMIREZ
P. J.
We concur:
McKINSTER
J.
MILLER
J.