The following summary is about a petition for resentencing our office prepared, filed and argued under AB 865, codified at Penal Code § 1170.91(b), at the Norwalk Courthouse. As the reader may already be aware, § 1170.91(b) retroactively permits a judge to resentence a military veteran who was sentenced before January 1, 2015 without consideration of his or her service-related mental condition, i.e. post-traumatic stress disorder (PTSD), traumatic brain injury (TBI), sexual trauma, substance abuse or other mental health problems suffered as a result of military service.
In resentencing the individual, the judge is to consider the service-related disability in mitigation, so the prosecution will seek to argue that the service-related disability has no nexus to the crime committed – i.e. that the PTSD or TBI, or that the psychiatrist who diagnosed defendant was suffering from such a condition was equivocal in his findings.
In our client’s case, our client was convicted in 2009 of two counts of second-degree robbery (Penal Code § 211) and the jury found true the allegation that our client personally used a firearm in the commission of the crime (Penal Code § 12022.53(b)).
The jury also found true the allegation that the dollar amount of the robbery exceeded $200,000.
The crime took place in 2008 in the parking lot of a Norwalk Bank of America. It was alleged that our client and a friend waited there for a Brinks truck to arrive to deliver or pick up cash from the bank. Our client’s friend allegedly pointed an AK-47 at the Brinks truck driver and the “messenger,” the Brinks employee who moved the cash from the rear of the truck to the bank or visa versa. While this was happening, our client transferred about $270,000 in cash into a nearby white van.
Our client and his friend then left the scene and drove perhaps a mile, where they “torched” the van to destroy any fingerprints and to create a diversion from police rushing to the Bank of America, to help our client and his friend leave the area more easily.
The following day, our client’s friend passed away in a motorcycle accident and the coroner inspecting his backpack, found on the body, discovered Bank of America cash bands used to hold stacks of money and fake mustaches and wigs. The police were then alerted, who also found a San Diego hotel key in the backpack.
The hotel was registered in the name of our client, so police then searched for our client, eventually arresting him in Henderson, Nevada with over $200,000 in cash.
The case then went to trial and our client was defended by a public defender.
The judge in Norwalk “maxed out” our client with a high term sentence of five years for the robbery, plus ten years for the gun enhancement and two years for the amount of the robbery involving more than $200,000, all as to the first Brinks truck driver. As to the second Brinks truck driver, the judge sentenced our client to one-third of the mid-term of 3 years on the robbery (one year), plus one-third of ten years for the gun enhancement (3 years, 4 months), plus one-third the two-year term on the $200,000 as to the second victim. The judge then ran the sentences consecutive, not concurrent, for a total sentence of 22 years in state prison.
At the time of sentencing in 2009, the judge did not consider our client’s PTSD he acquired as a result of service in combat from 2001 to 2003 in Iraq, where he personally witnessed many of his friends die from sniper fire, rocket-propelled grenades and improvised explosive devices (IED’s).
A prisoner rights activist then called Greg Hill & Associates to seek our help in having the client resentenced under AB 865. Greg Hill & Associates then prepared a petition for resentencing and a supplemental memorandum in support of resentencing, including the client’s DD-214 proof of military service, a diagnostic report of our client suffering from PTSD as a result of his combat experiences in Iraq, several letters from those who know our client and various articles about how PTSD can affect one’s judgement, need for adrenaline-producing events, willingness to take risks and a military serviceman’s difficulty re-integrating back into civilian society.
At the hearing on the petition, the judge first announced that he was not inclined to change the sentence at all because the crime was so well planned and lacked the hallmarks of an impulsive crime as one would expect with someone suffering from PTSD.
Greg then asked the judge to consider the testimony of the prisoner rights witness, who had spent over 200 hours on the phone with our client from jail. She described our client and, while she was doing so, the judge changed his mind about resentencing.
When she was done testifying, and being subject to cross-examination by the prosecutor, the judge ruled that he was going to reduce the client’s sentence to 17 years, which meant our client had already served the full amount of this time (due to pre-sentence credits, Prop 57 milestone credits and 80% being applied to 17 years). The judge did this by changing the consecutive term for robbery, the gun enhancement and the robbery amount enhancement to concurrent, eliminating five years from the total sentence.
Our client would be released immediately once he cleared medical examination and CDCR processing otherwise. It was a great result for our client.
For more information about AB 865 / Penal Code § 1170.91 resentencing for military veterans, please click on the following articles: