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Can Romero Motion Bypass 1170.91 Determinate Sentence Rule?

In 2018, the California Legislature amended Penal Code § 1170.91 (originally passed in 2014) to allow most veterans suffering from certain service-related mental disorders to petition for resentencing if the person was sentenced prior to January 1, 2015, and the person was sentenced to a determinate term.  The process allows resentencing with the court considering the service-related disability as a mitigating factor.

Our office has successfully brought these petitions for military veterans, so we are familiar with the statute.
Brief Synopsis: If a prior servicemember suffering from a service-related disability is sentenced to an indeterminate term, i.e., 25 to life, he or she is not eligible for resentencing under Penal Code § 1170.91 because 1170.91 is limited to resentencing on determinate terms.
Thyrone Ryan Stewart is an Army veteran who was honorably discharged from the U.S. Army in 1976.  He suffers from schizophrenia, which was determined to be service-related.  In 1986, and again in 1992, he was convicted of first degree burglary.  In 2001, after being convicted on two counts of spousal battery, as well as one count of assault likely to cause great bodily injury (former Penal Code § 245(a)(1), now § 245(a)(4)) and one count of simple battery (Penal Code § 242), he was sentenced in Riverside County as a third-striker to two consecutive terms of 25 years to life in prison, plus one year in county jail for simple battery.

After the amended version of 1170.91 was passed in 2018, Stewart filed a petition for resentencing under section 1170.91.  
The People conceded that Stewart had made a prima facie case entitling him to relief but for the fact that he had been sentenced to indeterminate terms.

The Riverside County judge assigned to the petition denied the petition because Stewart was sentenced to indeterminate terms.

art_1529_-_4th_app_dist__div_2__riverside_.jpg4th Appellate District Div 2 Riverside

Stewart appealed this ruling to the Fourth Appellate District Court of Appeals, arguing that if resentenced, he could be resentenced to determinate terms if the judge granted a Romero motion (People v. Superior Court (Romero) (1996) 13 Cal.4th 497) to strike one or more of his strike priors.

The Fourth Appellate District considered Stewart’s Romero argument, as well as a similar argument that could be made for resentencing under Proposition 36 (under Penal Code § 1170.126) which Stewart did not bring, and concluded that neither possibility was open to him, so it affirmed the trial court judge’s ruling.
The appellate court explained that with Stewart’s original sentencing as a third-striker, there was no other possible penalty for each of his felony convictions other than an indeterminate term of 25 years to life.  The court went on to explain that the gist of 1170.91 is to look to whether petitioner is eligible for resentencing to a determinate triad (i.e., 16-2-3, 2-3-4) term.  Moreover, section 1170.91 is not a way to obtain an opportunity to make a Romero motion.  In addition, 1170.91 is only for a judge to consider a service-related disorder as a mitigating factor when choosing from a sentencing triad.

We present this article with a rather significant comment.  Our office has sought resentencing for a military veteran on several occasions.  On each occasion, not only did the original sentencing judge commit errors in sentencing on other issues years earlier, but the judge handling the 1170.91 petition took the opportunity to resentence our client by considering his service-related disorder, but also to correct the errors.

In one case, the original sentencing judge had applied a sentencing enhancement for each of two victims when the enhancement really should have only been imposed once.  The new sentencing judge fixed that error, saving our client two years in prison.  In the same case, we argued that not only should a lower term in the sentencing triad be chosen, but the terms should have been concurrent and not consecutive.  In other words, other arguments can be made if a prima facie case is first made.

In another case we handled, we argued for a lower term within the sentencing triad as well as that the court could strike a one-year prison prior under revisions to Penal Code § 667.5(b) from Assembly Bill 136 and that the judge could strike the firearm enhancement under Penal Code § 12022.53 from Assembly Bill 620.  After all, we believe if there is resentencing, the sentence becomes non-final again and any and all recent changes in the law can apply if defendant is eligible.

The citation for the Fourth Appellate District Court ruling discussed above is People v. Thyrone Ryan Stewart (4th App. Dist., 2021) 66 Cal. App. 5th 416, 280 Cal. Rptr. 3d 843.

For more information about Penal Code § 1170.91, please click on the following articles:
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