People v. Brock CA2/6 ( 2022 )

Filed 6/15/22 P. v. Brock CA2/6
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California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B313769
(Super. Ct. No. NA051026)
Plaintiff and Respondent, (Los Angeles County)
v.
RONALD BROCK,
Defendant and Appellant.
Ronald Brock appeals from an order denying his petition
for resentencing pursuant to Penal Code section 1170.91.1 For
reasons we shall explain, we dismiss the appeal.
PROCEDURAL BACKGROUND
In 2003, a jury convicted appellant of ten counts of lewd or
lascivious conduct with a child under 14 years of age (Pen. Code,
§ 288, subd. (a)). He was sentenced to a total of 26 years in
All further statutory references are to the Penal Code
1
unless otherwise stated.
prison. On count 8, the base count, appellant received the upper
term of eight years. On each of the remaining counts, counts 9
through 17, he was sentenced to two years -- one-third the middle
term of six years. Counts 1 through 7 were dismissed pursuant
to section 1385.
Appellant’s petition, which was filed in 2019, requested
resentencing based on mental health issues related to his prior
military service.2 Section 1170.91, subdivision (a) authorizes the
court, when sentencing a felony defendant who is or was a
member of the United States military, to consider as a factor in
mitigation, in imposing a determinate term sentence, that the
defendant “may be suffering from sexual trauma, traumatic brain
injury, post-traumatic stress disorder, substance abuse, or
mental health problems as a result of his or her military service.”
The statute applies retroactively to defendants sentenced before
January 1, 2015. (See id., subd. (b)(1)(B).)
Appellant appeared with counsel at the hearing on the
petition. The trial court acknowledged appellant’s health
conditions and his prior military service but did not find that the
conditions stemmed from his service. Citing a September 26,
2002 psychological report, the court found that the sentencing
court was aware of appellant’s prior military service and that the
report “is indicating that all issues did not occur as a result of
any military service, not to mention it does not appear that
[appellant] was deployed in any shape, way or form.” The court
determined appellant’s health condition “was caused by a very
difficult and traumatic childhood but it had absolutely nothing to
2 Although appellant filed the petition on a pre-printed
habeas corpus form, the trial court appropriately treated it as a
petition for relief under section 1170.91.
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do with the military.” The court stated: “[Y]ou can say it’s a
factor in mitigation and the court greatly appreciates that he
served his country, [but] it does not negate what he did to his
daughter in this particular case.”
We appointed counsel to represent appellant in this appeal
After an examination of the record, counsel filed an opening brief
which raises no arguable issues. We advised appellant he had 30
days within which to personally submit any contentions or issues
that he wished us to consider. He subsequently filed a 14-page
typewritten supplemental brief.
Because this is an appeal from an order denying
postconviction relief, appellant is not entitled to our independent
review pursuant to People v. Wende (1979) 25 Cal.3d 436. (People
v. Serrano (2012) 211 Cal.App.4th 496, 501; People v. Cole (2020)
52 Cal.App.5th 1023, 1039-1040, review granted Oct. 14, 2020,
S264278.) We do, however, consider the issues raised in
appellant’s supplemental brief. (Cole, at p. 1040.)
DISCUSSION
Section 1170.91 provides that a person serving a sentence
for a felony conviction who was in the military and suffers from
mental health problems “as a result of his or her military service
may petition for a recall of sentence.” (§ 1170.91, subd. (b)(1).) If,
after a hearing, the court finds the defendant qualifies, “the court
may, in its discretion, resentence the person following a
resentencing hearing.” (§ 1170.91, subd. (b)(3), italics added.)
Thus, unlike the recent resentencing procedures mandating relief
if the petitioner satisfies the relevant criteria, relief under section
1170.91 is discretionary. (Ibid.)
“‘Where, as here, a discretionary power is statutorily vested
in the trial court, its exercise of that discretion “must not be
3
disturbed on appeal except on a showing that the court exercised
its discretion in an arbitrary, capricious or patently absurd
manner that resulted in a manifest miscarriage of justice.”’”
(People v. Williams (2013) 58 Cal.4th 197, 270-271.)
Even if appellant was eligible for resentencing, as he
claims, the trial court did not abuse its discretion by declining to
mitigate his sentence. The jury convicted appellant of ten counts
of lewd or lascivious conduct upon his eight-year-old daughter
(§ 288, subd. (a)). On direct appeal, appellant argued his
sentence was disproportionate to the relative severity of the
crimes and his personal history. Among other things, he
“point[ed] out that his criminal history is minor, that he has
served his country in the military, and that he himself was
molested by family members as a child.” (People v. Brock (Jan.
19, 2005, B169224 & B173044) [nonpub. opn.], italics added.)3
Appellant also “relie[d] heavily on two psychological evaluations
that concluded he was not a pedophile and had a good prognosis
for treatment.” (Ibid.)
Familiar with the evidence at trial, the trial court
concluded appellant did not deserve the requested relief. In so
ruling, the court considered all of the mitigating factors,
including those related to defendant’s mental health conditions.
Appellant’s supplemental brief fails to provide any basis upon
which we could conclude that the trial court abused its discretion
in denying the petition.
Since nothing in appellant’s supplemental brief raises an
arguable issue on appeal from the order denying the petition for
3On our own motion, we take judicial notice of our prior
opinion affirming the judgment. (Evid. Code, § 452, subd. (d).)
4
resentencing, we dismiss the appeal. (People v. Serrano, supra,
211 Cal.App.4th at pp. 503-504.)
DISPOSITION
The appeal is dismissed.
PERREN, J.
We concur:
GILBERT, P.J.
YEGAN, J.
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Judith L. Meyer, Judge
Superior Court County of Los Angeles
______________________________
Anna Rea, under appointment by the Court of Appeal, for
Defendant and Appellant.
No appearance for Plaintiff and Respondent.
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