People v. Abdullah CA2/3

Filed 2/17/22 P. v. Abdullah CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE
THE PEOPLE, B308415
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA039782)
v.
HANIF SALADIN ABDULLAH,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Laura L. Laesecke, Judge. Affirmed.
Russell S. Babcock, 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 D. Matthews and Ryan M. Smith,
Deputy Attorneys General, for Plaintiff and Respondent.
——————————
A jury convicted Hanif Saladin Abdullah of first degree
burglary and the trial court sentenced him, in part under the
“Three Strikes” law, to 35 years to life. Abdullah petitioned for
resentencing under Penal Code1 section 1170.91, which allows
certain veterans who were convicted of a felony to request
resentencing if, as a result of their service, they suffer from
substance abuse or other enumerated problems. The trial court
denied the petition and Abdullah appealed. Because section
1170.91 does not permit resentencing where, as here, the
petitioner was sentenced for an indeterminate term imposed
under the Three Strikes law, we affirm.
BACKGROUND
A. Abdullah’s burglary conviction and original
sentence
In 1999, Abdullah entered a victim’s residence while the
victim was home. Abdullah tried to steal a VCR, but the victim
apprehended him.
An information charged Abdullah with one count of first
degree burglary. (§ 459.) It alleged that Abdullah suffered three
prior serious felonies pursuant to the Three Strikes law
(§§ 1170.12, subds. (a)–(d), 667, subds. (b)–(i)) and served
multiple prior prison terms (§ 667.5). A jury found Abdullah
guilty of first degree burglary and the three prior strike
convictions were found true after a court trial.
The trial court sentenced Abdullah to 25 years to life under
the Three Strikes law. (§§ 667, subds. (b)–(i), 1170.12.) The trial
court also imposed two five-year terms pursuant to section 667,
subdivision (a)(1), for a total of 35 years to life.
1 All further statutory references are to the Penal Code.
2
B. Abdullah’s motion for resentencing
In 2019, Abdullah filed a petition for writ of habeas corpus
in the trial court to recall his sentence under section 1170.91.
The court appointed counsel and Abdullah filed a motion for
resentencing under the same section.
The court held a resentencing hearing pursuant to section
1170.91. Abdullah and his counsel were present. The court
indicated that it had considered Abdullah’s petition and
supporting documentation. Before hearing argument, the trial
court stated, “I recognize that Mr. Abdullah did have and
hopefully has overcome, but at the time of this crime, had a drug
problem. [¶] I don’t read 1170.91 to read that if that drug
problem is . . . a result of his service then he deserves
resentencing. [¶] I read 1170.91 to say if the trauma of the
service had some direct effect on the commission of the crime,
then we can consider some form of resentencing. [¶] I don’t
necessarily equate drug use or drug addiction with the trauma
from the service that would necessitate someone to be
resentenced.”
The prosecutor agreed with the court’s assessment that
Abdullah had not established a connection between his military
service and his criminal history. The prosecutor also noted
Abdullah’s long criminal history across three states that included
forgery and theft, which may have been related to addiction, but
were not drug offenses. The prosecutor also pointed out that
Abdullah had a history of residential burglaries that occurred
while the residents were home. However, the prosecutor
acknowledged that “[t]his is a different time and place and
[Abdullah] is 72 and if the court feels that it is appropriate to
resentence him, I would submit.”
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Abdullah’s counsel conceded that there was nothing specific
connecting Abdullah’s drug and addiction and subsequent
criminal history to his military service. However, counsel noted
that Abdullah had no criminal record prior to his military service,
that Abdullah saw active combat during the Vietnam War, and
his criminal activity began with drug use and proceeded to theft
after his military service had ended. Counsel also asked the
court to consider that no one was harmed during the commission
of the crime and that the victim felt that Abdullah had served his
time and repaid his debt to society.
C. The trial court’s decision on Abdullah’s
resentencing petition
The court denied Abdullah’s motion for resentencing under
section 1170.91 but struck his two five-year terms. This reduced
the sentence from 35 years to life down to 25 years to life.
Prior to issuing its decision, the court noted that all of
Abdullah’s prior convictions were violent offenses. The court also
noted that Abdullah’s motion to dismiss priors under People v.
Superior Court (Romero) (1996) 13 Cal.4th 497 had been denied
in 1999.
The court then explained the reasons it was denying the
motion to resentence under section 1170.91: “So I’m not willing,
because I don’t see the evidence here, to say that your
commission of this crime was as a result of your service in
Vietnam. I recognize that you have a drug problem. But there
were lots of people who have drug problems in that day and age
regardless of whether they served, and that drug problem isn’t
what I am seeing in here necessarily the cause of these
burglaries. [¶] What I do see—and I’m willing to do this for
you—is that because you’re back here on a law that allows me to
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resentence you, if I had chosen to do so. You got two five-year
state prison priors. That is how you got to the 35 years to life. I
will strike those. [¶] If that helps you when you get to the time
when you’re being up for parole, hopefully that may do so. I don’t
know. But instead of it being . . . a 35-year-to-life, I’ll sentence
you to 25 years to life.”
DISCUSSION
Abdullah argues that the trial court abused its discretion
by denying his section 1170.91 petition, or alternatively, by
failing to hold an evidentiary hearing on the petition. The
argument lacks merit because Abdullah was ineligible for
resentencing under section 1170.91.2
I. Section 1170.91 permits resentencing of military
veterans in certain circumstances
Section 1170.91 is a statutory provision that requires
sentencing courts, effective January 1, 2015, to “consider any
trauma, substance abuse, and mental health problems caused by
a defendant’s service in the United States military as mitigating
factors weighing in favor of a low-term sentence.” (People v.
Bonilla-Bray (2020) 49 Cal.App.5th 234, 238.) The Legislature
later amended that statute “to allow people sentenced before
2 The People did not raise before the trial court the issue of
the inapplicability of section 1170.91 to Abdullah’s sentence and
the trial court did not rule on that basis. The People, however,
briefed this issue in its respondent’s brief on appeal and Abdullah
opted not to file a reply brief. Under these circumstances we
consider this legal issue, which is fatal to Abdullah’s appeal and
his motion for resentencing. (See People v. Zamudio (2008)
43 Cal.4th 327, 351, fn. 11 [ruling will be affirmed if correct on
any ground, including a ground different than the one the trial
court considered].)
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January 1, 2015, to petition for a resentencing hearing in which
the court takes into account mitigating factors related to military
service.” (Ibid.)
If the trial court concludes before the original sentence that
a felony defendant may be suffering from substance abuse (or
other enumerated problems) as a result of military service, the
court shall consider that fact in mitigation “when imposing a
term under subdivision (b) of Section 1170.” (§ 1170.91,
subd. (a).) When the issue is raised on a request for resentencing,
the statute provides: “A person currently serving a sentence for a
felony conviction, whether by trial or plea, who is, or was, a
member of the United States military and who may be suffering
from . . . substance abuse, or mental health problems as a result
of his or her military service may . . . request resentencing
pursuant to subdivision (a)” (§ 1170.91, subd. (b)(1), italics added)
so long as the defendant meets two criteria: first, that this
circumstance “was not considered as a factor in mitigation at the
time of sentencing” (§ 1170.91, subd. (b)(1)(A)) and second, that
the “person was sentenced prior to January 1, 2015” (§ 1170.91,
subd. (b)(1)(B)).
Upon receipt of a section 1170.91 petition, the trial court
must hold a hearing. (§ 1170.91, subd. (b)(3).) If the court
determines that the defendant may be suffering from substance
abuse or other enumerated problems as a result of his military
service, the court must consider this as a mitigating factor at
sentencing. Where trial courts fail to comply with their
mandatory duty, the case should be remanded for resentencing
even if counsel failed to call specific attention to the oversight.
(People v. Bonilla-Bray, supra, 49 Cal.App.5th at p. 239.)
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We review a trial court’s sentencing decision for abuse of
discretion. (People v. Sandoval (2007) 41 Cal.4th 825, 847.) “The
trial court’s sentencing discretion must be exercised in a manner
that is not arbitrary and capricious, that is consistent with the
letter and spirit of the law, and that is based upon an
‘individualized consideration of the offense, the offender, and the
public interest.’ ” (Ibid.)
II. Abdullah was ineligible for resentencing under
section 1170.91 due to the nature of his sentence.
Abdullah argues that the trial court incorrectly focused on
whether the trauma of military service led to the commission of
the crime, a test that does not appear in the statute. Abdullah is
correct that the statute requires the trial court to consider a
different question: whether the petitioner suffered from
“substance abuse . . . as a result of his or her military service.”
(§ 1170.91, subd. (b)(1).) If so, the petitioner is entitled to have
the trial court consider this in mitigation. (Ibid.)
Abdullah’s claim of error is unavailing, however, because
he was not eligible for resentencing under section 1170.91. Only
those persons subject to a determinate sentence under section
1170, subdivision (b) are eligible for resentencing and Abdullah is
not one of those persons.
Case law has recognized this limitation imposed by the
statutory language. “The plain language of the statute is clear.
A defendant meeting section 1170.91 subdivision (b)(1)’s
requirements may obtain ‘resentencing pursuant to subdivision
(a).’ [Citation.] In turn, subdivision (a) of the statute provides
that the trial court shall consider mitigating factors related to the
defendant’s military service ‘when imposing a term under
subdivision (b) of Section 1170.’ [Citation.] In other words,
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section 1170.91 only applies to determinate terms imposed under
section 1170, subdivision (b).” (People v. Estrada (2020)
58 Cal.App.5th 839, 842–843, italics omitted; accord, People v.
Stewart (2021) 66 Cal.App.5th 416, 425–426 [person sentenced
under Three Strikes law ineligible for resentencing under
§ 1170.91 when there is no basis for imposing a determinate
sentence].)
Abdullah was not sentenced to a determinate term under
section 1170, subdivision (b). Instead, Abdullah was sentenced as
a third-strike defendant to an indeterminate term of 25 years to
life under section 1170.12.3 Abdullah does not argue on appeal
that there is now any basis to resentence him under section 1170,
subdivision (b) rather than section 1170.12. Because the
resentencing provisions set forth section 1170.91 apply only to a
sentence imposed under section 1170, subdivision (b), they do not
apply to Abdullah’s indeterminate sentence.
Abdullah asserts that the court could have recalled his
sentence and granted a renewed Romero motion to strike one or
both of his strike priors, which would make him immediately
eligible for release and bring him within the ambit of section
1170.91’s provisions. However, “[s]ection 1170.91 is not a vehicle
for obtaining the opportunity to make a Romero motion.” (People
3 Section 1170, subdivision (b), imposes a determinate
sentence of a fixed number of years, setting forth the criteria a
trial court must use in choosing the number of years. By
contrast, the Three Strikes law mandates an indeterminate term
of life imprisonment for third-strike defendants. (§§ 667,
subd. (e)(2)(A) [mandating an “indeterminate term of life
imprisonment” with certain minimums], 1170.12, subd. (c)(2)(A)
[same].)
8
v. Stewart, supra, 66 Cal.App.5th at p. 424.) This argument,
therefore, provides no basis to disturb the trial court’s ruling.
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED.
LIPNER, J.*
We concur:
LAVIN, Acting P. J.
EGERTON, J.
*Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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