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AB 865 – Recall & Resentencing for Military Veterans

Our office receives about one call per week from a family member or even the actual defendant who was sentenced to state prison and that person was a military veteran.  The person may be vaguely aware of Assembly Bill 865 (AB 865) and its provisions for those sentenced before January 1, 2015, or they may be inquiring whether a Franklin Hearing is possible or whether any of the “new laws about removing enhancements apply.”

What we repeatedly realize is that AB 865 is misunderstood.  The following case exemplifies how even a judge misunderstood this new law.

To be clear, in 2018, the California Legislature expanded the relief available to veterans suffering from service-related mental health and / or substance abuse issues to allow a former service member sentenced before January 1, 2015 to ask for recall of his or her sentence and for resentencing.  To be eligible, a petitioner must meet the following criteria:
  1. He or she must be currently serving a sentence for a felony conviction, whether by trial or plea (Penal Code § 1170.91(b)(1));
  2. He or she served in a branch of the United State military (Id.);
  3. As a result of his or her service, he or she suffers from sexual trauma, traumatic brain injury, post-traumatic stress disorder, substance abuse, or mental health problems (Id.);
  4. The court did not consider those circumstances as a factor in mitigation at the time of sentencing; (Id., § 1170.91(b)(1)(A)); and
  5. He or she was sentenced before January 1, 2015;
Penal Code § 1170.91(b)(3), in turn, establishes procedures for the trial courts to evaluate resentencing petitions.  It provides that upon receiving a petition, the court must hold a public hearing after at least 15 days to determine whether the defendant meets the statutory criteria.  “At that hearing, the prosecution shall have an opportunity to be heard on the petitioner’s eligibility and suitability for resentencing.  If the person satisfies the criteria [in subdivision (b)], the court may, in its discretion resentence the person following a resentencing hearing.”

In the Norwalk case at issue, Defendant Jonathon Bonilla-Bray is a Marine Corps veteran who alleged, because of his service, that he suffers from mental health and substance abuse problems.

In 2011, he was charged with one count of carjacking (Penal Code § 215(a)) and one count of attempted carjacking (Penal Code §§ 664/215(a)).  The information also alleged that he personally used a firearm in the commission of the attempted carjacking (Penal Code §12022.53(b)).

At defense counsel’s request, the judge appointed a psychiatrist to examine defendant.  The psychiatrist concluded that defendant suffered from serious mental health issues, but was fit to stand trial.

He then pled no content to the attempted carjacking and admitted the gun allegation.  The judge sentenced him to twelve and a half years, the mid-term for count 2, plus ten years for the firearm enhancement.  The judge recommended that defendant received psychiatric / psychological counseling in prison.

Mr. Bonilla-Bray, on April 23, 2019, filed a petition for recall and resentencing under AB 865.  He attached his DD-214 to show proof of being in the service.  He alleged that the trial court judge did not consider his military service as a factor in mitigation in sentencing.  He asked that the judge resentence him to the low term for count 2 and to strike the firearm enhancement under SB 620.

The trial court judge summarily denied the petition, without even a hearing, calling it “a petition for recall and resentencing under SB 620” that was barred because Bonilla-Bray’s sentence became final over five years earlier.  The judge did not mention AB 865 or Penal Code § 1170.91.  No notice was given by the court to the prosecutor or to the victim(s) in setting a hearing.

Mr. Bonilla-Bray appealed this ruling to the Second Appellate District, which reversed the Norwalk judge’s ruling and remanded the matter for a hearing as provided under 1170.91(b)(3)for  recall and resentencing, and then to then exercise its discretion to determine whether to resentence Defendant and may exercise its discretion under SB 620, as well.

For more information about sentencing of military veterans, please click on the following articles:

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