People v. Brooks

Filed 12/22/20

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,
Plaintiff and Respondent, A158988
v. (Alameda County Super. Ct.
JASON BROOKS, No. 160765A)
Defendant and Appellant.

Jason Brooks appeals the denial of a petition seeking recall of his
sentence pursuant to Penal Code1 section 1170.91. Brooks agreed to a
stipulated term of years in a plea bargain 13 years ago, was sentenced
accordingly, and recently sought recall of his sentence under section 1170.91,
subdivision (b)(1), invoking an amendment to section 1170.91 enacted two
years ago. He asks that we reverse the summary denial of his petition. We
affirm.
I. BACKGROUND
In 2007, Brooks was charged with 21 counts of robbery (§ 211), with
most counts carrying an enhancement for personal use of a firearm
(§§ 12022.5, subd. (a), 12022.53, subd. (b)). He ultimately pled no contest to

1 All undesignated statutory references are to the Penal Code.
1
three counts of second degree robbery (§§ 211, 212.5) together with the
accompanying firearm use allegations (§ 12022.5), in exchange for a
stipulated prison term of 19 years eight months. The People dismissed the
remaining counts as a result of the plea, and the trial court imposed a
sentence of the agreed-upon prison term. At the sentencing hearing, no
testimony was taken or evidence introduced of his military service or
substance abuse issues.
In 2019, acting in pro per, Brooks filed a petition to recall his sentence
pursuant to section 1170.91, subdivision (b)(1). Brooks alleged that (1) he
was a member of the United States military, (2) he developed a substance
abuse problem as a result of such service, (3) he was sentenced before
January 1, 2015, and (4) neither his military service nor his substance abuse
was considered as mitigation during his sentencing hearing. The petition
sought a resentencing hearing in which these newly recognized mitigating
factors could be taken into account. Summarily denying relief on October 18,
2019, the court noted that Brooks’s military service and his drug use were
known to the sentencing court before his sentence was imposed, that Brooks
never requested those facts be considered in mitigation, and that in any event
there was no proof his drug use was caused by his military service. But the
specific legal ground the court cited for summary dismissal was that, in his
plea bargain, Brooks agreed to a stipulated term, and as a result, the court
had no power to resentence him.
This timely appealed followed.
II. DISCUSSION
At the threshold, the Attorney General argues Brooks’s appeal should
be dismissed for lack of a certificate of probable cause. We disagree. Brooks
does not appeal his conviction. (See § 1237.5; Cal. Rules of Court, rule

2
8.304(b).) Rather, he appeals the summary denial of his sentencing recall
petition. Because Brooks’s petition is specifically authorized by statute, the
strictures of section 1237.5 do not apply. (See People v. Ellis (2019)
43 Cal.App.5th 925, 945; People v. Hurlic (2018) 25 Cal.App.5th 50, 57–58;
cf. People v. Stamps (2020) 9 Cal.5th 685, 696 (Stamps) [certificate of
probable cause not a condition precedent to appeal denial of recall petitions of
nonfinal sentences under section 1385].)
Turning to the merits, Brooks contends (1) the trial court erred in
summarily denying his section 1170.91 recall petition, (2) the error was
prejudicial per se as a structural denial of due process and therefore calls for
automatic reversal, (3) he is entitled to appointment of counsel on remand,
and (4) his recall hearing should be reassigned to another judge. We reject
Brooks’s first argument and resolve the appeal on that basis, and thus we
have no occasion to reach issues (2) through (4).
A. Relevant Legal Background
a. Section 1170.91
Under section 1170, subdivision (b), “[w]hen a judgment of
imprisonment is to be imposed and the statute specifies three possible terms,
the choice of the appropriate term shall rest within the sound discretion of
the court.” (§ 1170, subd. (b).) In 2014, the Legislature enacted former
section 1170.91 [now identified as § 1170.91, subd. (a)] (Stats. 2014, ch. 163,
§ 2), which mandates consideration of trauma resulting from military service
as a mitigating factor when a court exercises determinate sentencing triad
discretion. (See People v. King (2020) 52 Cal.App.5th 783, 786 (King); People
v. Bonilla-Bray (2020) 49 Cal.App.5th 234, 238).
In 2018, the Legislature amended section 1170.91 to add a retroactivity
clause and a procedure for resentencing. (Stats. 2018, ch. 523, § 1; § 1170.91,
subd. (b); King, supra, 52 Cal.App.5th at p. 788; People v. Bonilla-Bray,
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supra, 49 Cal.App.5th at p. 238.) Subdivision (b) allows a person currently
serving a prison sentence for a felony conviction, “whether by trial or plea,” to
petition for a recall of his sentence provided he meets the following initial
requirements: (1) he is or was a member of the United States military, and
(2) he “may be suffering from sexual trauma, traumatic brain injury, post-
traumatic stress disorder, substance abuse, or mental health problems as a
result of [such] military service . . . .” (§ 1170.91, subd. (b).)
A section 1170.91, subdivision (b) petitioner must allege: “(A) [t]he
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,” and “(B) [t]he person was sentenced
prior to January 1, 2015.” (§ 1170.91, subd. (b).) Provided that the petition
so alleges, the sentencing judge or in his or her absence an assigned judge of
the sentencing court “shall determine, at a public hearing” held upon proper
notice, whether the petitioner satisfies the requisite criteria. (Ibid.) If those
criteria are met, the petitioner may be resentenced, in the court’s discretion,
with trauma resulting from military service taken into account as a
mitigating factor. (Ibid.)
b. Other Comparable Sentencing Reform Schemes
Brooks centers his argument in this appeal on the language in section
1170.91 clause, “whether by trial or plea,” and, invoking that language,
claims entitlement to relief under section 1170.91 because his conviction rests
on a plea. In support of this argument, he points to what he says are other
comparable, recently enacted sentencing reform statutory schemes as
analogous to the retroactivity clause and resentencing mechanism spelled out
in section 1170.91.

4
 The first such statutory scheme Brooks cites is the one enacted by
Proposition 47. Passed in 2014, Proposition 47 (now codified at
section 1170.18) reclassified certain nonviolent felonies as misdemeanors.
(See People v. Morales (2016) 63 Cal.4th 399.) It allows a “person who, on
November 5, 2014, was serving a sentence for a conviction, whether by trial or
plea, of a felony or felonies who would have been guilty of a misdemeanor
under [this act]” to petition the court for a recall of the sentence and to be
resentenced as a misdemeanant. (§ 1170.18, subd. (a), italics added; see
Harris v. Superior Court (2016) 1 Cal.5th 984, 989 (Harris).) Proposition 47
thus enables the categorical reclassification of certain felonies as
misdemeanors, and its retroactive ameliorative effect extends to final
convictions by plea agreement. (See Harris, at p. 988.)
The second sentencing reform scheme to which Brooks points, enacted
in 2018 by Senate Bill No. 1393 (2017–2018 Reg. Sess.) (Senate Bill 1393)
(now codified at section 1385), gives sentencing courts discretionary authority
to dismiss a serious felony enhancement in furtherance of justice. (See Stats.
2018, ch. 1013, §§ 1–2.) Section 1385 allows the court to either dismiss the
enhancement altogether or “instead strike the additional punishment for that
enhancement in the furtherance of justice . . . .” (§ 1385, subd. (b)(1).)
Though section 1385 expands sentencing courts’ discretionary authority, it
does not contain a retroactivity provision. (§ 1385; cf. § 1170.18.)
B. Cases Under Proposition 47 and Senate Bill 1393
Brooks urges us to apply the reasoning of cases decided under
Proposition 47 and Senate Bill 1393, and, on the same rationale adopted in
those cases, to construe section 1170.91, subdivision (b) in his favor here.
He first cites Harris, supra, 1 Cal.5th 984. The issue in Harris was
whether in a Proposition 47 proceeding seeking recall of a sentence from a
final conviction by stipulated plea, the People may reinstate the balance of
5
the complaint dismissed pursuant to the plea agreement. (Harris, supra, at
p. 987.) As pertinent here, the Court held that despite defendant’s conviction
having come from a plea agreement specifying a stipulated term, defendant
was still entitled to the benefit of Proposition 47 reclassifying his conviction
from a felony to a misdemeanor. (Harris, at p. 991.)
Next, Brooks cites Stamps, supra, 9 Cal.5th 685, which holds that
Senate Bill 1393 relief is not foreclosed in cases involving nonfinal guilty plea
agreements with a stipulated sentence. There, defendant sought
resentencing relief pursuant to section 1385 as amended by Senate Bill 1393,
a statutory revision which was signed into law while his appeal was pending.
(Stamps, at pp. 693–694.) The Stamps court reasoned that a resentencing
court may not modify the terms of the plea agreement while otherwise
leaving the agreement intact, but must instead exercise its discretion to
reject the plea agreement altogether, thereby “ ‘ “restor[ing] the parties to the
status quo ante.” ’ ” (Id. at pp. 706–707; People v. Ellis, supra,
43 Cal.App.5th at pp. 944, 946.)
C. Section 1170.91 Relief Is Unavailable to a Sentence Imposed
Pursuant to a Plea Agreement to Stipulated Term of Years
With the foregoing Proposition 47 and Senate Bill 1393 cases in mind,
we see the dispositive issue in this appeal as whether the resentencing
authority granted by section 1170.91, subdivision (b), which applies to
sentences based on convictions suffered by “trial or plea” (§ 1170.91,
subd. (b)(1)), extends to sentences based on final convictions by plea
agreement specifying a stipulated imprisonment term. We hold it does not.
We decide statutory interpretation de novo (People v. Prunty (2015)
62 Cal.4th 59, 71), always taking as our starting point “the statutory
language because the words of a statute are generally the most reliable
indicator of legislative intent.” (In re C.H. (2011) 53 Cal.4th 94, 100.) Absent

6
ambiguity, there is no need to go beyond the plain language of the statute at
issue. (Beal Bank, SSB v. Arter & Hadden, LLP (2007) 42 Cal.4th 503, 508.)
Under this cardinal principle of statutory construction, we see no need to
delve beyond the text of section 1170.91 to resolve the issue presented here.
Brooks seeks recall of a sentence imposed based on his agreement to a
specific term of years. He reads section 1170.91, subdivision (b) broadly,
arguing that it contemplates relief for all plea types. (See § 1170.91,
subd. (b).) Adopting the same stance as the trial court, the Attorney General
counters that Brooks is precluded from any judicial exercise of
section 1170.91 resentencing discretion because his plea agreement rests on a
stipulated sentence. Thus, the Attorney General argues, “[t]here was no
judicial sentencing discretion applicable to [Brooks then], and there is none
available now” because any resentencing would unlawfully modify the terms
of the plea agreement while otherwise leaving the agreement intact.
We think the Attorney General has the better of the argument. “Where
the plea is accepted by the prosecuting attorney in open court and is
approved by the court, . . . the court may not proceed as to the plea other than
as specified in the plea.” (§ 1192.5, emphasis added.) When a court accepts a
plea bargain, the court must impose a sentence within the limits of that
bargain. (People v. Segura (2008) 44 Cal.4th 921, 931; see People v.
Cunningham (1996) 49 Cal.App.4th 1044, 1047.) Thus, a court may not
modify the terms of a plea agreement while otherwise leaving the agreement
intact, “nor may the court effectively withdraw its approval by later
modifying the terms of the agreement it had approved.” (Segura, supra, at
pp. 931–932.) “ ‘ “Should the court consider the plea bargain to be
unacceptable, its remedy is to reject it, not to violate it, directly or
indirectly.” ’ ” (Stamps, supra, 9 Cal.5th at p. 701, quoting People v.

7
Cunningham, supra, 49 Cal.App.4th at p. 1047; accord People v. Woods (2017)
12 Cal.App.5th 623, 631 [“the court was required to withdraw its approval of
the plea bargain in its entirety; it was not free to enforce some portions of it
but not others”].) It follows that unless the Legislature intended otherwise,
a retroactive resentencing statute incorporates long-standing law that “a
court cannot unilaterally modify an agreed-upon term by striking portions of
it . . . .” (Stamps, supra, 9 Cal.5th at p. 701.)
The premise of Brooks’s argument—that there is triad sentencing
discretion to exercise here—is incorrect. The plain language of
section 1170.91 is clear that any resentencing relief shall occur through the
mechanisms of the determinate sentencing triad. (See King, supra,
52 Cal.App.5th at p. 788; § 1170, subd. (b).) In this circumstance, any
exercise of discretion reducing Brooks’s sentence would necessarily modify
the terms of his plea agreement while otherwise leaving the plea agreement
intact. Nothing in the statute suggests an intent to overturn, sub silentio,
long-standing plea-bargaining law binding courts to the agreements they
approve.
The analogy Brooks would have us draw to Stamps and Harris is inapt,
since those cases involved scenarios in which resentencing courts were asked
to reject stipulated plea agreements categorically under retroactively
conferred resentencing authority, thus eliminating the legal basis for the
conviction under section 1170.18 (e.g., Harris) or providing new discretion to
dismiss an enhancement under section 1385 (e.g., Stamps). When the
Legislature makes an ameliorative change in the law that specifically
contemplates the change will apply to all convictions, final or nonfinal,
whether suffered by trial or plea, resentencing eligibility will follow, even for
defendants whose convictions have been final for many years. But the

8
problem Brooks has is that section 1170.91 does not eliminate the legal basis
for his conviction or grant the trial court unfettered discretion to reconsider
an aspect of his sentence that would in turn affect his plea bargain. All it
does is allow a court to take certain mitigating factors into account, and only
insofar as the court is otherwise permitted to exercise discretion in the
selection of a low, middle, or high term from within the applicable sentencing
triad.
Our dissenting colleague takes us to task for identifying nothing in the
legislative history of section 1170.91, subdivision (b) to support our reading of
the statute. (Dis. opn., post, at p. 1.) The legislative history has no place in
our analysis because the statutory language is unambiguous. According to
the dissent, we are somehow assuming that, upon a remand for resentencing,
“both the prosecution and the sentencing court would disregard the
legislative mandate to reconsider the matter . . . in good faith and in accord
with the obvious purpose of the ameliorative legislation.” (Dis. opn., post, at
p. 4.) But section 1170.91 grants the sentencing court no general authority to
“reconsider the matter.” Section 1170.91, in plain terms, specifies criteria
that sentencing judges “shall consider” when exercising triad discretion, a
particular kind of sentencing discretion that the sentencing judge in this case
never had any occasion to employ. (§ 1170.91, subds. (a), (b).) The
prosecutor’s broad latitude in taking into account whatever mitigating factors
the defense might wish to advocate in plea bargain negotiations is a different
matter altogether. Nothing stopped Brooks in 2009 from claiming service-
related drug addiction as a basis to persuade the prosecutor to offer a lower
term of years. Indeed, it is because we agree public officials must discharge
their duties in good faith that we have no doubt the prosecutor would have
heard Brooks out had that been his pitch. More than a decade later, we do

9
not read section 1170.91, subdivision (b) as an open-ended directive to set
plea negotiations at large so that he may, once again, have the opportunity to
claim drug addiction in a renewed effort to negotiate a lower term.2
Focusing its analysis on the text of section 1170.91, subdivision (b), the
court in King, supra, 52 Cal.App.5th 783, recently explained why someone in
Brooks’s position, who agreed to a specific term of years in his plea bargain,
is ineligible for resentencing with enhanced mitigation under section 1170.91.
In rejecting defendant King’s argument there, the court said: “[B]ecause
King entered into a plea, which included a stipulated sentence for a term of
30 years, even if the trial court granted relief under the petition by recalling
King’s sentence and holding a new sentencing hearing, it would be precluded
from considering King’s mental health and substance abuse problems in
mitigation and imposing a lesser prison sentence when sentencing King.
Instead, based on the plea agreement, which remains in force, the trial court
would still be required to impose the stipulated sentence of 30 years in
prison.” (King, supra, at p. 791.)

2 Underlying the analysis in the dissent is the assumption that a
petitioner who is eligible for resentencing under section 1170.91,
subdivision (b), is in the same position as a defendant where the sentencing
court elected to recall a sentence under section 1170, subdivision (d). (Dis.
opn., post, at pp. 2–3.) That assumption is incorrect. Section 1170,
subdivision (d), applies only in narrow circumstances not present here: When
the sentencing court, on its own motion, recalls the sentence within 120 days
of the commitment, or “at any time upon the recommendation of the secretary
or the Board of Parole Hearings in the case of state prison inmates, the
county correctional administrator in the case of county jail inmates, or the
district attorney of the county in which the defendant was sentenced.”
(§ 1170, subd. (d)(1).) Because none of those situations is involved when a
defendant petitions for resentencing under section 1170.91, subdivision (b),
the reference in section 1170, subdivision (d) to resentencing the defendant as
if he had not previously been sentenced is irrelevant.
10
 The King court further explained: “Another way to understand the lack
of relief available to King under section 1170.91, subdivision (b) is to focus on
the language of the statute itself. A petitioner who meets the requirements
set forth in section 1170.91, subdivision (b) obtains the remedy of
‘resentencing pursuant to subdivision (a).’ (§ 1170.91, subd. (b)(1).)
Subdivision (a) provides that the trial court shall take into account the
defendant’s mental health and substance abuse problems ‘when imposing a
term under subdivision (b) of Section 1170.’ (§ 1170.91, subd. (a), italics
added.) A trial court that sentences under subdivision (b) of section 1170,
exercises its discretion to choose an upper, middle or lower determinate term
based on its consideration of factors in mitigation and aggravation. However,
when a trial court sentences a defendant who has agreed to a stipulated
sentence for a term of years, the trial court exercises no discretion to decide
between an upper, middle and lower term and may not consider factors in
mitigation and aggravation. Therefore, the trial court is not ‘imposing a term
under subdivision (b) of Section 1170.’ (§ 1170.91, subd. (a).) As a result, a
petitioner, like King, who agreed to a stipulated sentence for a specific prison
term cannot obtain the relief afforded under section 1170.91,
subdivision (b)(1), as that petitioner cannot be resentenced under
subdivision (b) of Section 1170 to an upper, middle or lower term based on
factors in mitigation and aggravation.” (King, supra, 52 Cal.App.5th at
p. 791.)
Brooks stands in the same position defendant King did and his
argument in this appeal fails for the same reasons. Contrast this with the
situation of a defendant who is sentenced pursuant to an open plea (see King,
supra, 52 Cal.App.5th at p. 790), or to a term up to the statutory maximum,
allowing the court to select from within the sentencing triad as the basis of

11
the sentence or a component of it. Having agreed to a specific number of
years’ imprisonment under a plea agreement which gave the court no room to
exercise discretion in the selection of a low, middle or high term, Brooks
offers no argument suggesting how that agreement may be vitiated
consistent with section 1192.5 and the restrictions of the statute under which
he here seeks relief. Implicit in his argument is the premise, echoed by the
dissent, that section 1170.91, subdivision (b) confers authority to reject an
agreed term of years retroactively should the court, in its discretion,
determine that some lesser term is warranted. We discern no such grant of
open-ended discretionary authority in the language of the statute. To the
contrary, we think the resentencing authority conferred by section 1170.91,
subdivision (b) is inherently incompatible with the recognized finality of plea
agreements to a specified term of years.
III. DISPOSITION
The summary denial of Brooks’s petition is affirmed.
STREETER, J.
I CONCUR:
BROWN, J.

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POLLAK, P. J., Dissenting.
I respectfully dissent.1 Like the ameliorative provision enacted by
Proposition 47 at issue in Harris v. Superior Court (2016) 1 Cal.5th 984,
Penal Code2 section 1170.91, subdivision (b) provides explicitly that it may be
invoked by a person currently serving a felony prison sentence based on a
conviction “whether by trial or plea.” The majority in my view unjustifiably
restricts the applicability of this provision to convictions based on plea
agreements that do not specify a term of imprisonment—undoubtedly a
common if not the most common form of plea bargain. Neither the majority
here nor the court in People v. King (2020) 52 Cal.App.5th 783 (King)
identifies anything in the legislative history supporting this restrictive
interpretation of the statute.3
Both the majority here and the King court assume—incorrectly, in my
view—that because section 1170.91 requires a court to consider service-
induced trauma only when selecting a term from the applicable triad, and
because the court imposed a term to which the parties had agreed, the court
would have no discretion to impose a different term if it recalled defendant’s
sentence. As the court put it in King, “Based on the rule that the trial court is

1I agree with the majority that a certificate of probable cause is not
required to bring this appeal before us.
2 All statutory references are to the Penal Code.
3 I agree with the majority that the statute is unambiguous, but it does
not say what the majority implies. Section 1170.91, subdivision (b) states
explicitly that a person serving a sentence for a felony conviction, whether by
trial or plea, who is suffering from any of the specified military-induced
conditions “may petition for a recall of sentence . . . to request resentencing
pursuant to subdivision (a)” if that circumstance was not considered as a
factor in mitigation at the time of sentencing. (Italics added.) The provision
unambiguously authorizes a petition whether the defendant has been
sentenced after trial or entry of a plea.
1
not permitted to diverge from the stipulated sentence agreed upon by the
parties and approved, as a final matter, by the court ([People v.] Stamps
[(2020)] 9 Cal.5th [685,] 701 [(Stamps)]), the trial court considering a petition
for resentencing under section 1170.91, subdivision (b)(1), is simply unable to
take into account any factors in mitigation to diverge from the stipulated
sentence for a specific prison term agreed upon in the plea agreement.” (King,
supra, 52 Cal.App.5th at p. 793.) The majority here relies on the same
rationale: “the resentencing authority conferred by section 1170.91,
subdivision (b) is inherently incompatible with the recognized finality of plea
agreements to a specified term of years.” (Maj. opn., ante, at p. 12.)
This analysis rests on two fallacies. First it wrongly assumes that the
prosecutor who agreed to the 19-year 8-month sentence, presumably based on
the middle or upper term of the triad, necessarily would not agree after a
recall of that sentence to a modification of the plea agreement if the factors
specified in section 1170.91, subdivision (a) were not originally taken into
account. There is no reason to assume that in such a case the prosecutor will
inevitably fail to acknowledge that consideration of those factors justifies use
of a lower triad term and agree to a shorter sentence.
More importantly, the analysis wrongly assumes that if the prosecution
refuses to agree to use of a different triad term and a shorter sentence, the
court would have no alternative but to reimpose the original sentence.
However, it is not the case and Stamps does not hold that a trial court’s
approval of a plea agreement irrevocably fixes a defendant’s sentence as “a
final matter,” as the court stated in King, supra, 52 Cal.App.5th at page 793.
Subdivision (b)(1) of section 1170.91 provides for “a recall of sentence . . . to
request resentencing pursuant to subdivision (a).” Subdivision (d) of
section 1170 provides that when a court recalls a sentence, it may

2
“resentence the defendant in the same manner as if they had not previously
been sentenced.” (Italics added.)4 A recall of sentence thus restores the
proceedings to the status that existed after the trial court approved the plea
agreement but before it imposed sentence. At that point, although the trial
court may not modify the plea agreement by unilaterally altering its terms,
the court does retain the authority to withdraw its approval of the plea
agreement—an authority that “has been described as ‘near-plenary.’ ”
(Stamps, supra, 9 Cal.5th at p. 708.) “The statutory scheme contemplates
that a court may initially indicate its approval of an agreement at the time of
the plea but that ‘it may, at the time set for the hearing on the application for
probation or pronouncement of judgment, withdraw its approval in the light
of further consideration of the matter . . . .’ [Citation.] ‘The code expressly
reserves to the court the power to disapprove the plea agreement’ up until
sentencing.” (Id. at pp. 705–706, italics added, quoting § 1192.5.) “ ‘[T]he
court, upon sentencing, has broad discretion to withdraw its prior approval of
a negotiated plea’ ” if new facts have come to light, if the court has become
more fully informed about the case, or if it has concluded that the agreement
is unfair or not in the best interests of society. (Id. at p. 706.)
Hence, affording defendant the remedy of “a recall of sentence . . . to
request resentencing” (§ 1170.91, subd. (b)(1)) will not be an idle act even if
the parties had previously agreed to and the court had approved a specified
term of years. Because the trial court will resentence defendant as if he had
not previously been sentenced, it will have the discretion to withdraw its

4 Although, as the majority notes, the conditions that bring
section 1170 into play are of course different from the conditions authorizing
recall under section 1170.91, a recall of sentence is still a recall of sentence.
In either case the defendant must be resentenced and there is no indication
that the court’s authority is any less in one situation than the other.
3
prior approval of the plea agreement if, upon considering the factors
identified in section 1170.91, subdivision (a), it concludes that the sentence is
no longer appropriate. The new statute requires that “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” be considered when selecting the appropriate triad
term upon which to base a sentence; if the court did not consider those factors
when it approved the parties’ plea agreement, it cannot be assumed that
their consideration will have no effect on the court’s assessment of whether
the agreed term is in the interest of justice and should be approved. The court
may or may not adhere to its prior approval of the plea agreement.
Section 1170.91 was amended to require that retroactive consideration
be given to military service induced trauma if not considered as a factor in
mitigation when the parties previously entered and the court approved a plea
agreement. The majority asserts that “[n]othing stopped Brooks in 2009 from
claiming service-related drug addiction as a basis to persuade the prosecutor
to offer a lower term of years.” (Maj. opn., ante, at p. 9.) If such a factor was
considered at that time, the new provision affords no relief. But the statute
was expressly amended to permit reconsideration if the matter was not
originally considered, whether or not the defendant could have raised the
issue prior to January 1, 2015. (See § 1170.91, subd. (b)(1)(B).) There is no
justification for assuming that in such a case both the prosecution and the
sentencing court would disregard the legislative mandate to reconsider the
matter in light of this additional circumstance. We must proceed on the
assumption that these public officials will exercise their judgment in good
faith and in accord with the obvious purpose of the ameliorative legislation.
In some cases, these additional factors may well justify mitigation of the

4
defendant’s sentence. Whether this is such a case should be determined by
those officials in the exercise of their respective discretions. I therefore
dissent.
POLLAK, P. J.

5
Trial Court: Alameda County Superior Court

Trial Judge: Hon. Morris D. Jacobson

Counsel: Violet Elizabeth Grayson, by appointment of the Court of
Appeal Under the First District Appellate Project’s
Independent Case System, for Defendant and Appellant.

Xavier Becerra, Attorney General, Catherine A. Rivlin,
Supervising Deputy Attorney General, Gregg E. Zywicke,
Deputy Attorney General, for Plaintiff and Respondent.

A158988