People v. Alkebu-Lan CA2/2 ( 2024 )

Filed 1/26/24 P. v. Alkebu-Lan CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B324470
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA151577)
v.
SHAI ALKEBU-LAN,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Henry J. Hall, Judge. Affirmed.
A. William Bartz, Jr., under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Steven E. Mercer and Noah P. Hill, Deputy
Attorneys General, for Plaintiff and Respondent.
______________________________
Defendant and appellant Shai Alkebu-Lan appeals from
the trial court’s order denying his petition for recall and
resentencing under Penal Code section 1170.91.1 Because
defendant is statutorily ineligible for section 1170.91 relief, we
affirm.
BACKGROUND
Original conviction and sentencing
In 1997, a jury found defendant guilty of two counts of
attempted murder (§§ 664, 187, subd. (a)), two counts of assault
with a deadly weapon (§ 245, subd. (a)(1)), one count of
aggravated mayhem (§ 205), and three counts of attempted
aggravated mayhem (§§ 664, 205). The jury found true
allegations that defendant personally used a deadly and
dangerous weapon as to each count (§ 12022, subd. (b)(1)) and, as
to the attempted murder counts, that he inflicted great bodily
injury (§§ 12022.7, subd. (b), 12022.9). People v. Alkebulan
(Aug. 25, 1999, B123720) [nonpub. opn.] (Alkebulan).)~ The trial
court sentenced defendant to a determinate term of 14 years
eight months in state prison, plus an indeterminate term of life
with the possibility of parole.
We affirmed the judgment on direct appeal. (Alkebulan,
supra, B123720.)
Defendant’s section 1170.91 petition for resentencing
In 2018, defendant filed a petition for resentencing
pursuant to section 1170.91, which allows individuals convicted
of some felonies to seek recall and resentencing so that certain
mitigating factors related to military service can be considered.
The trial court, Judge Michael D. Abzug presiding, appointed
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2
counsel to represent defendant and ordered the matter “placed on
calendar for possible modification of sentence.”
Defendant subsequently filed a second petition pursuant to
section 1170.91, which the People opposed.
On February 24, 2020, Judge Abzug issued an order
explaining that “[s]hutting the door without a hearing is more
likely, as a practical matter, to consume more judicial resources
to resolve additional writs and appeals than giving the defendant
the benefit of a single and final hearing on the issue.”
Accordingly, the trial court ordered defendant “down for re-
sentencing on May 8, 2020.”
Following a series of continuances, the matter was taken
off calendar and reassigned to Judge Henry J. Hall.
Hearing on defendant’s petition
On October 7, 2022, the trial court, Judge Hall presiding,
held a hearing on defendant’s petition.
Defense counsel argued that Judge Abzug had already
ruled that defendant was entitled to resentencing and had
ordered a resentencing hearing. The trial court disagreed,
interpreting Judge Abzug’s order as only requiring a hearing on
defendant’s eligibility for relief under section 1170.91.
Ruling on defendant’s petition
On October 11, 2022, the trial court denied defendant’s
petition on the grounds that (1) defendant was ineligible for relief
because he was serving an indeterminate sentence, and
(2) defendant failed to establish that he was suffering from
trauma or mental health issues as a result of his military service.
Appeal
This timely appeal ensued.
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DISCUSSION
Defendant argues that the trial court improperly denied his
section 1170.91 petition without holding the resentencing hearing
that was ordered by Judge Abzug on February 24, 2020. The
People contend that the court’s ruling must be affirmed because,
based on amendments to section 1170.91 made effective during
the pendency of this appeal, defendant’s attempted murder
conviction renders him ineligible for resentencing as a matter of
law.
I. Standard of review
Resolution of this appeal requires us to apply law to
undisputed facts. We do so de novo. (Martinez v. Brownco
Construction Co. (2013) 56 Cal.4th 1014, 1018.)
II. Section 1170.91
As originally enacted in 2014, former section 1170.91
“merely required courts to consider as a mitigating factor for
determinate sentencing certain specified qualifying conditions
the defendant may be suffering as a result of his or her military
service—sexual trauma, traumatic brain injury, posttraumatic
stress disorder, substance abuse, or mental health problems.
[Citations.]” (People v. Sherman (2023) 91 Cal.App.5th 325, 329
(Sherman).)
“In 2018, the Legislature amended section 1170.91 to allow
those sentenced for a felony conviction before January 1, 2015, to
petition for a resentencing hearing at which the court could
consider mitigating factors related to military service.
[Citations.]” (People v. Estrada (2020) 58 Cal.App.5th 839, 841;
see also People v. Stewart (2021) 66 Cal.App.5th 416, 423.)
In 2022, the Legislature amended section 1170.91 again, in
ways that “both expanded and restricted eligibility for relief.”
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(Sherman, supra, 91 Cal.App.5th at p. 330.) As relevant to this
appeal, the Legislature restricted resentencing eligibility by
adding subdivision (c) to section 1170.91, effective January 1,
2023. (Sherman, supra, at p. 330.) This new subdivision
provides that section 1170.91 “does not apply to a person
convicted of, or having one or more prior convictions for, an
offense specified in” section 667, subdivision (e)(2)(C)(iv).
(§ 1170.91, subd. (c), italics added.) The offenses specified in
section 667, subdivision (e)(2)(C)(iv), include “[a]ny homicide
offense, including any attempted homicide offense, defined in
[s]ections 187 to 191.5, inclusive.” (§ 667, subd. (e)(2)(C)(iv)(IV).)
“[S]ection 1170.91, subdivision (c), applies to pending
petitions for resentencing filed before January 1, 2023, including
those pending on appeal.” (Sherman, supra, 91 Cal.App.5th at
p. 333.)2
III. Analysis
Defendant was convicted of two counts of attempted
murder (§§ 664, 187, subd. (a)), which is an attempted homicide
offense within the meaning of section 667, subdivision
(e)(2)(C)(iv)(IV). Accordingly, section 1170.91 does not apply to
him. (§ 1170.91, subd. (c) [“This section does not apply to a
person convicted of, or having one or more prior convictions for,
2 In Sherman, the Court of Appeal explained that, by adding
subdivision (c) to section 1170.91, “the Legislature effectively
accomplished a partial repeal of the statute. [Citation.] When a
pending matter rests solely on a statutory basis, and no rights
have vested under the statute, a repeal or partial repeal of the
statutory right or remedy operates prospectively and applies to
the pending case. [Citation.]” (Sherman, supra, 91 Cal.App.5th
at p. 331.)
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an offense specified in clause (iv) of subparagraph (C) of
paragraph (2) of subdivision (e) of Section 667 . . .”]; see also
Sherman, supra, 91 Cal.App.5th at p. 328 [“section 1170.91,
subdivision (c), applies to cases already pending when it became
effective”].)
Defendant’s appellate briefs ignore subdivision (c) of
section 1170.91 entirely and do not respond to the People’s
contention that it serves to bar defendant’s entitlement to
resentencing relief. Defendant has effectively conceded the point.
Because defendant is categorically ineligible for relief
under section 1170.91, we need not address whether the hearing
held by the trial court on October 7, 2022, comported with Judge
Abzug’s previous order. (See People v. Mason (1991) 52 Cal.3d
909, 944 [“It is axiomatic that we review the trial court’s rulings
and not its reasoning”].)
DISPOSITION
The October 11, 2022, order denying defendant’s
section 1170.91 petition is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_____________________, Acting P. J.
ASHMANN-GERST
We concur:
________________________, J.
CHAVEZ
________________________, J.
HOFFSTADT
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