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Does Penal Code 1170.91 Apply if Stipulated Sentence?
Penal Code § 1170.91 provides for the resentencing of military members or veterans suffering from certain mental health and substance abuse problems as a result of military service if they were sentenced to a determinate term prior to January 1, 2015, and the sentencing court did not consider the mental health and substance abuse problems as factors in mitigation.
In a Nutshell: A petition for resentencing a military veteran under Penal Code § 1170.91 (codifying AB 865) is improper when the sentence was a stipulated sentence agreed to by defendant, rather than a sentence imposed by the judge according to his or her discretion.
In 2009, an amended information in San Diego County Superior Court alleged Simon King committed 30 counts of physical and sexual abuse against two stepchildren. Seven of the 30 counts alleged lewd acts upon a child under the age of 14 (Penal Code § 288(a)); three counts alleged sexual intercourse / sodomy with a child ten years of age or younger (Penal Code § 288.7(a)); two counts or oral copulation / sexual penetration with a child ten years of age or younger; one count of aggravated sexual assault of a child (Penal Code § 269(a)); one count of felony child abuse (Penal Code § 273a(a)); one count of forcible rape (Penal Code § 261(a)(2)) and many other very serious charges.
Pursuant to a plea bargain reached, King pled guilty to five counts of forcible lewd acts upon a child (Penal Code § 288(b)(1)), and the People dismissed the remainder of the counts. As part of the plea bargain, the parties agreed to a stipulated sentence of 30 years in state prison, comprised of six-year terms, consecutive, for each of the five counts.
On January 25, 2010, the trial court sentenced King to a prison term of 30 years. At the hearing, the trial court judge stated, “It is a stipulated plea. I don’t need to make any findings.”
On June 10, 2019, representing himself in pro per, King filed a petition to recall his sentence pursuant to Penal Code § 1170.91(b). In support, King submitted a declaration and attached evidence to establish that he had served in the military and that during this time he suffered a traumatic brain injury (TBI), became dependent on substance abuse and “experienced service related traumas that was later diagnosed as PTSD.”
Court of Appeal Fourth Appellate District Div 1 San DiegoOn June 28, 2019, the trial court summarily denied his petition without a hearing.
King then filed an appeal from this order with the Fourth Appellate District.
The Fourth Appellate District Court began its analysis by noting that Penal Code § 1170.91 required, in its original form in 2015, that the trial court consider mental health and substance abuse problems as factors in mitigation only “when imposing a term under subdivision (b) of Section 1170” (former 1170.91, now 1170.91(a)). The provision describes the trial court’s exercise of sentencing discretion to choose an upper, middle or lower determinate term based on factors in mitigation and aggravation (§ 1170.91(b)).
In 2018, the Legislature amended § 1170.91 to provide relief for former or current members of the military who were sentenced prior to January 1, 2015 and did not have their mental health or substance abuse problems considered as factors in mitigation in sentencing.
The People opposed King’s petition for resentencing, contending that a hearing was not required under the circumstances of King’s case because he entered into a stipulated sentence.
The Fourth Appellate District agreed, explaining that even if the trial court erred by failing to hold a resentencing hearing, King was not entitled to relief on his appeal because the error, if any was not prejudicial because King agreed to the 30-year sentence by stipulation from the outset.
After all, an error is prejudicial only if the error resulted in a miscarriage of justice. The California Supreme Court explained that “a miscarriage of justice” should be declared “only when the court . . . is of the opinion that it is reasonably probable that a result more favorable to the appealing party would have be reached in absence of the error.” People v. Watson (1956) 46 Cal.3d 818, 836.
The appellate court then pointed out that King was not ineligible because he entered into a plea bargain, but it was because he entered into a stipulated sentence.
Therefore, if the trial court had resentenced him, it would still be bound by the stipulated sentence, so his sentence would not change and there would be no prejudicial error.
We bring this summary to the reader’s attention to draw the distinction between a plea bargain wherein there is an open plea and the judge exercises sentencing discretion and a plea bargain with a stipulated sentence because there are significant consequences in the difference for future resentencing, as this case exemplifies.
The citation for the Fourth Appellate District Court ruling discussed above is People v. Simon King (4th App. Dist., 2020) 52 Cal. App. 5th 783, 266 Cal. Rptr. 3d 571.
For more information about resentencing if one is a former member of the military, please click on the following articles:
