People v. Green CA1/4 ( 2022 )

Filed 7/29/22 P. v. Green CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent, A162342
v. (San Mateo County Super. Ct.
CEDRIC TYRONE GREEN, No. SC041613A)
Defendant and Appellant.
Cedric Tyrone Green appeals the denial of a petition seeking recall of
his sentence pursuant to Penal Code 1 section 1170.91, subdivision (b). Green
was convicted of robbery and sentenced under the “Three Strikes” law to
35 years to life, having been convicted of two prior strikes. (§ 667, subds.
(b)–(i); § 1170.12.) More than two decades later, he sought recall of his
sentence and asked to be resentenced under section 1170.91, subdivision (b).
He now requests that we reverse the summary denial of his petition. We
agree with the trial court’s determination that Green is not eligible for
section 1170.91 relief, and affirm.
1 All undesignated statutory references are to the Penal Code.
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I. BACKGROUND
In November 1997, the San Mateo County District Attorney filed an
information charging Green with one count of second degree robbery in
violation of section 212.5. The information alleged a violation of
section 1203.09, subdivision (f ) because the victim was over 60 years old. It
further charged Green with having been convicted of two prior strikes, six
and four years prior. Green filed a Romero2 motion seeking to dismiss one of
his prior strikes. In 1998, the trial court denied the motion and sentenced
him to an indeterminate sentence of 35 years to life in prison under the Three
Strikes law. This court affirmed Green’s conviction and sentence in 1999.
(People v. Green (Sept. 30, 1999, A082658) [nonpub. opn.].) And in 2015, we
affirmed the trial court’s denial of Green’s petition for resentencing under
section 1170.126, the Three Strikes Reform Act of 2012, as Green was
statutorily ineligible for resentencing under section 1170.126. (People v.
Green (June 30, 2015, A141549) [nonpub. opn.].)
On July 16, 2020, Green filed a petition for recall of his sentence and
for resentencing under section 1170.91 so that certain mitigating factors
connected to his military service could be taken into account in the
sentencing process. Green asserted he was statutorily eligible for
resentencing under section 1170.91 because (1) he was sentenced prior to
January 1, 2015, (2) he was a member of the United States Navy and
“suffered from substance abuse ‘as a result of his [. . .] military service,’ ” and
(3) “the sentencing court in 1998 did not have an opportunity to consider . . .
that [he] suffered from substance abuse as a result of his military service.”
The trial court ruled that Green was ineligible for relief under section
1170.91, subdivision (b), and summarily denied his petition, finding the plain
2 People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
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language of section 1170.91 precluded relief. The court interpreted section
1170.91 to require a defendant to have been sentenced to a determinate
sentence under section 1170, subdivision (b) to be eligible for relief under
section 1170.91. Because Green was sentenced to an indeterminate sentence
under section 1170.12, subdivision (c)(2), the court found him to be
categorically ineligible for relief.
This timely appeal followed.
II. DISCUSSION
Relying on the plain language and legislative intent of section 1170.91,
subdivision (b), Green contends the trial court erred in summarily denying
his resentencing petition. We read the statute differently and see no error.
A. Relevant Legal Background—Section 1170.91
The Legislature enacted former section 1170.91 in 2014. (Stats. 2014,
ch. 163, § 2.) The original version of the statute, prior to a 2018 revision, is
now set forth in section 1170.91, subdivision (a). Section 1170.91,
subdivision (a), requires the court to consider as a mitigating factor the fact
that the defendant “is, or was, a member of the United States military who
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 . . . when imposing a term under subdivision (b) of
Section 1170.” (§ 1170.91, subd. (a); see former § 1170.91; Stats. 2014,
ch. 163, § 2.) A new subdivision (b), added to section 1170.91 in 2018, allows
for retrospective relief from a final judgment, provided the petitioner satisfies
particular conditions. (People v. Stewart (2021) 66 Cal.App.5th 416, 422
(Stewart).)
Subdivision (b)(1) of section 1170.91 now provides: “A person currently
serving a sentence for a felony conviction . . . who is, or was, a member of the
United States military and who may be suffering from sexual trauma,
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traumatic brain injury, post-traumatic stress disorder, substance abuse, or
mental health problems as a result of his or her military service may petition
for a recall of sentence . . . to request resentencing pursuant to subdivision (a)
if the person meets both of the following conditions:
“(A) The circumstance of suffering from sexual trauma, traumatic brain
injury, post-traumatic stress disorder, substance abuse, or mental health
problems as a result of the person’s military service was not considered as a
factor in mitigation at the time of sentencing.
“(B) The person was sentenced prior to January 1, 2015.” (§ 1170.91,
subd. (b)(1).)
B. Whether Section 1170.91 Authorizes Relief for Defendants with
Final Convictions Who Are Serving Indeterminate Sentences
We do not agree with Green’s proposed interpretation of the text of
section 1171, subdivision (b), whether this provision is read individually or
contextually within the statutory scheme of which it is part. Bearing in mind
the pertinent case law, we see the dispositive issue here as whether the
resentencing authority granted by section 1170.91, subdivision (b), which
applies to sentences based on convictions suffered by “trial or plea,” extends
to indeterminate sentences. We hold it does not.
Questions of statutory interpretation are reviewed de novo. (People v.
Prunty (2015) 62 Cal.4th 59, 71.) Our primary goal is “to ascertain and
effectuate the law’s intended purpose.” (Weatherford v. City of San Rafael
(2017) 2 Cal.5th 1241, 1246.) We must start by examining the statutory
language as “the words of a statute are generally the most reliable indicator
of legislative intent.” (In re C.H. (2011) 53 Cal.4th 94, 100.) We read the
statutory language with its “ ‘ “usual and ordinary meaning, and ‘[i]f there is
no ambiguity, then we presume the lawmakers meant what they said, and
the plain meaning of the language governs.’ ” ’ ” (Lee v. Hanley (2015)
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61 Cal.4th 1225, 1232–1233.) If the statutory language is ambiguous, we
consider legislative history and the intent of the lawmakers. (Id. at p. 1233.)
We use the interpretation that aligns “ ‘ “most closely with the apparent
intent of the lawmakers, with a view to promoting rather than defeating the
general purpose of the statute.” ’ ” (Ibid.)
Green petitions for a recall of his sentence under section 1170.91,
subdivision (b). He asserts that the plain language of section 1170.91,
subdivision (b)(1) sets forth clear and explicit criteria as to who can petition
for such a recall: military members or veterans who are suffering from
certain mental health and substance abuse issues resulting from their
military service which was not considered as a mitigating factor by the trial
court and if the person was sentenced before January 1, 2015. The Attorney
General, adopting the trial court’s reading of the statute, argues that the
plain language of section 1170.91, its legislative history, and case law
establish that Green is categorically ineligible for relief because he is serving
an indeterminate sentence.
We agree with the Attorney General. It is not necessary to consider
whether Green satisfied the specific requirements listed in section 1170.91,
subdivision (b), because he is categorically ineligible for relief under the plain
language of the statute. Green’s take on the statutory language, while
superficially plausible, is incorrect. He contends that section 1170.91,
subdivision (b)(1) does not limit resentencing eligibility to individuals serving
determinate sentences pursuant to section 1170, subdivision (b). But the
trial court did not add eligibility criteria to section 1170.91, subdivision (b).
Rather, the language of the statute, on its face, applies only to defendants
serving determinate sentences. (Stewart, supra, 66 Cal.App.5th at p. 423; see
People v. Estrada (2020) 58 Cal.App.5th 839, 842–843.)
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A petitioner who satisfies the conditions set out in section 1170.91,
subdivision (b)(1), is eligible to request “resentencing pursuant to
subdivision (a).” (§ 1170.91, subd. (b)(1).) Subdivision (a) of section 1170.91
applies only “when imposing a term under subdivision (b) of Section 1170.”
(§ 1170.91, subd. (a).) Section 1170, subdivision (b) governs determinate
triad sentencing. Put simply, section 1170.91 applies when a statute
provides for a determinate sentence with an upper, middle, and lower term.
(See People v. King (2020) 52 Cal.App.5th 783, 786 [section 1170.91 “provides
for 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”]; Stewart, supra, 66 Cal.App.5th at p. 423
[“Subdivision (b) of section 1170 applies when a statute provides for a
determinate upper, mid[dle], and lower term; it provides that, in selecting the
appropriate term, the trial court must consider factors in mitigation and
aggravation, if any.”].)
If a statute is unambiguous, as is the case with section 1170.91, we
need not consider the legislative history. But taking Green’s argument on its
own terms, and assuming arguendo that the statutory language is reasonably
susceptible of the interpretation he proffers, the legislative history supports
the trial court’s interpretation of the statute. It is correct, as Green suggests,
that the Assembly Floor Analysis of Assembly Bill No. 865 (2017–2018 Reg.
Sess.) (enacted in 2018 and amended section 1170.91 to include
subdivision (b)) illustrates the Legislature’s intent to expand the statute to
“ensure . . . equal treatment of all veterans” (Assem. Floor Analysis of Assem.
Bill No. 865 (2017–2018 Reg. Sess.) as amended Aug. 17, 2018, p. 4), but his
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version of the legislative history fails to present the whole picture. The
Assembly Floor Analysis of Assembly Bill No. 865 simply demonstrates the
Legislature’s intent to make section 1170.91 retroactive so that “ ‘there is
equal treatment of all veterans, not just those convicted after January 1,
2015.’ ” (Assem. Floor Analysis of Assem. Bill No. 865 (2017–2018 Reg. Sess.)
as amended Aug. 17, 2018, p. 4.) Thus, subdivision (b) of Section 1170.91
expands the temporal application of subdivision (a) by amending the
provision to be retroactive to include individuals sentenced to determinate
terms before January 1, 2015. There is no indication, however, that the
Legislature intended to extend the benefit of section 1170.91 resentencing to
veterans sentenced to indeterminate terms, a class of defendants who were
not covered by section 1170.91 as originally enacted.
Green’s statutory purpose argument is also off the mark. Neither
statutory history nor statutory purpose overrides the plain terms of a statute.
Green insists that section 1170.91 is a method for military veterans to
petition for a recall of their sentence and to request resentencing, but here
too, we are unpersuaded even if we accept the premise that statutory purpose
is relevant to the analysis here. Under current case law, section 1170.91 is a
remedy only for those already sentenced within the determinate triad
sentencing scheme. (See Stewart, supra, 66 Cal.App.5th 416; People v.
Estrada, supra, 58 Cal.App.5th 839.) It is not a vehicle to transfer from an
indeterminate sentencing scheme to a determinate sentencing scheme. There
are remedies available for petitioners to seek relief from an indeterminate
sentence, namely a Romero motion and a petition for relief under section
1170.126. Green pursued both remedies to no avail.
In 1998, the court denied Green’s motion to dismiss one of his previous
strikes under Romero during sentencing for his third strike. Then in 2015,
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this court affirmed the trial court’s denial of Green’s petition for resentencing
under section 1170.126. (People v. Green, supra, A141549.) This court held
that Green was statutorily ineligible for relief because section 1170.126
applies to individuals serving “an indeterminate term of life imprisonment
. . . for a conviction of a felony or felonies that are not defined as serious
and/or violent felonies . . . .” (§ 1170.126, subd. (e); see People v. Green, supra,
A141549.) Green’s robbery conviction is defined as a serious and violent
felony, disqualifying him for relief under section 1170.126. (People v. Green,
supra, A141549.)
Thus, Green’s argument that section 1170.91 is a method to petition for
recall of his indeterminate sentence and request resentencing is incorrect.
Section 1170.91 is not, in effect, a vehicle for relitigation of a Romero motion
that was denied long ago and has since become final. We agree with the
Court of Appeal in Stewart, which held: “Section 1170.91 is not a vehicle for
obtaining the opportunity to make a Romero motion. We repeat, it requires
the trial court, if resentencing is granted, to consider the petitioner’s
military-related disorder ‘as a factor in mitigation when imposing a term
under subdivision (b) of [s]ection 1170.’ (§ 1170.91, subd. (a), italics added;
see also id., subd. (b)(1).) It does not require the trial court to consider it
when deciding whether to impose a term under section 1170, subdivision (b).
In other words, granting a Romero motion is not imposing a term. The trial
court must consider the military-related disorder as a mitigating factor only
when making a choice from a triad.” (Stewart, supra, 66 Cal.App.5th at
p. 424.)
III. CONCLUSION AND DISPOSITION
As Green’s counsel correctly pointed out at oral argument, much is
known today about the significance of continuing trauma suffered by military
veterans that simply was not appreciated at the time Green was sentenced.
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Arguably, therefore, his case shows that there may be good policy reasons to
authorize resentencing for the purpose of considering service-related trauma,
whether the defendant is currently serving a determinate sentence or an
indeterminate sentence. We would invite the Legislature to revisit this issue
if that is what it wishes to accomplish. But as currently written, section
1171, subdivision (b) does not do so.
The summary denial of Green’s petition is affirmed.
STREETER, J.
WE CONCUR:
POLLAK, P. J.
BROWN, J.
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