Filed 1/20/21 P. v. Abraham CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE OF THE STATE 2d Crim. No. B300549
OF CALIFORNIA, (Super. Ct. No. CR45424)
(Ventura County)
Plaintiff and Respondent,
v.
JOHN ALBERT ABRAHAM,
Defendant and Appellant.
John Albert Abraham is a military veteran currently
serving an indeterminate term in prison of 29 years to life for a
violent assault. Relying upon Penal Code1 section 1170.91, he
seeks “resentencing” to enable the trial court to consider specified
aspects of his mental health as a circumstance in mitigation
when setting his prison term. He was, however, sentenced to an
indeterminate term under the “Three Strikes Law.” (§ 1170.12.)
All further statutory references are to the Penal Code
1
unless otherwise stated.
Section 1170.91 is limited to but one factor of many upon which
the court may rely in determining which of three specified
determinate terms is to be imposed and has nothing to do with
“Three Strikes” sentences. The trial court was correct in finding
he was ineligible. We affirm.
FACTS AND PROCEDURAL HISTORY
The relevant facts underlying appellant’s convictions are
recited from our 2003 unpublished opinion affirming the
judgment against him. (People v. Abraham (Jan. 22, 2003,
B152175) [nonpub. opn.].) “Abraham and Deborah N. lived
together for a period of time in her home. After a violent
incident, Abraham moved out at Deborah’s insistence. They
remained friends for about three months but, after further
violent behavior by Abraham, Deborah ended the friendship. A
few days later, Deborah arrived home to find Abraham sleeping
in her bed. She ordered him to leave and drove him to his
residence.
“One week later, on November 7, 1998, Deborah awoke
from a nap to find Abraham in her bedroom. After she ordered
Abraham to leave, Abraham attacked her. He hit her on the back
of the head and above an eye. He told her that he was going to
kill her and, when she began screaming, grabbed her around the
neck, choked her, and dragged her into the kitchen. He said if he
could not have her, no one would and that he would kill her.
“Deborah briefly lost consciousness and, when she revived,
Abraham pulled her up on her feet, pushed her against a counter,
and repeated his death threat. Deborah pleaded with Abraham
to stop, but Abraham pulled her towards her bedroom,
threatened her again, and threatened to kill her sons as well.
2
“Deborah’s former husband, Richard Crawford, arrived and
saw Abraham throw Deborah down the steps outside her back
door. Abraham knocked Crawford to the ground as Crawford
went to Deborah’s assistance.
“Abraham’s former girlfriend Elizabeth R. [testified] that
Abraham grabbed, hit and choked her on two occasions
approximately three years before the current offenses. The court
also admitted evidence that Abraham beat, choked, kidnapped
and raped his former wife Sandra H. approximately 12 years
before the current offenses.”
In 2001, Abraham was convicted by jury of assault with
force likely to produce great bodily injury (§ 245, former subd.
(a)(1), now subd. (a)(4)), making criminal threats (§ 422), and two
counts of battery (§ 242). The jury also found true the allegation
that Abraham inflicted great bodily injury on the assault victim
under circumstances involving domestic violence (§ 12022.7,
former subd. (d), now subd. (e)). Abraham admitted suffering two
prior convictions (Michigan convictions for kidnapping and first-
degree criminal sexual assault) that qualified as strikes.
At his jury trial, Abraham presented evidence that while
serving in the United States Army he had been diagnosed with
paranoid schizophrenia. His diagnosis was subsequently
modified to paranoid personality disorder with persecutory
delusional aspects and either intermittent explosive disorder or
impulse control disorder. Abraham’s expert witness testified that
Abraham’s mental health problems began when he was a
teenager and stemmed from his abusive upbringing. The expert
also testified that the first signs of Abraham’s mental problems in
the Army arose shortly after he completed basic training.
3
At the sentencing hearing, Abraham asked the trial court
to strike one of his strike priors pursuant to People v. Superior
Court (Romero) (1996) 13 Cal.4th 497. The court denied the
request. After “taking into account all the facts of the matter,
background and age of Mr. Abraham and everything covered in
all the papers and arguments,” the court imposed a sentence of
29 years to life on the assault count, consisting of 25 years to life
plus four years for the bodily injury enhancement, a concurrent
term of 25 years to life on the criminal threats count, and
concurrent six-month terms on the remaining counts. The court
rejected the prosecution’s request to impose consecutive terms.
In 2019, Abraham petitioned for veterans’ resentencing
under section 1170.91.2 The trial court denied the petition on the
2 Section 1170.91 provides in relevant part: “(a) If the court
concludes that a defendant convicted of a felony offense 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, the court shall
consider the circumstance as a factor in mitigation when
imposing a term under subdivision (b) of Section 1170. This
consideration does not preclude the court from considering
similar trauma, injury, substance abuse, or mental health
problems due to other causes, as evidence or factors in mitigation.
[¶] (b)(1) 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 sexual
trauma, 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, before
the trial court that entered the judgment or conviction in his or
her case, to request resentencing pursuant to subdivision (a) if
4
ground that section 1170.91 does not apply to individuals, like
Abraham, who are serving an indeterminate sentence rather
than a determinate sentence under section 1170.3
DISCUSSION
Abraham contends the trial court erred in concluding that
veterans’ resentencing under section 1170.91 is only available to
individuals who were sentenced to a determinate term under
section 1170. We are not persuaded.
“The rules of statutory construction are well-settled. ‘Our
task in interpreting a statute “is to ascertain and effectuate
legislative intent. [Citations.]” [Citation.] In order to do so,
“[w]e turn first to the words of the statute themselves,
recognizing that ‘they generally provide the most reliable
indicator of legislative intent.’ [Citations.] When the language of
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. This subdivision shall apply retroactively, whether or
not the case was final as of January 1, 2015.”
3 The court did not address the prosecution’s alternative
contention that Abraham was in any event not entitled to
resentencing under section 1170.91 because the record of his
conviction reflected that his mental health problems predated his
military service and were considered by the trial court at his
sentencing in 2001. We also decline to address this contention,
which the People reiterate on appeal, in light of our conclusion
that section 1170.91 resentencing is not available to individuals
like Abraham who are serving an indeterminate term.
5
the statue is ‘clear and unambiguous’ and thus not reasonably
susceptible [to] more than one meaning, ‘“‘“there is no need for
construction, and courts should not indulge in it.”’”’”’ [Citation.]”
(People v. Valliant (2020) 55 Cal.App.5th 903, 908.)
“Effective January 1, 2015, sentencing courts must consider
any trauma, substance abuse, and mental health problems
caused by a defendant’s service in the United States military
. . . .” (People v. Bonillo-Bray (2020) 49 Cal.App.5th 234, 238;
§ 1170.91, subd. (a).) When such evidence is presented, “the
court shall consider the circumstance as a factor in mitigation
when imposing a term under subdivision (b) of Section 1170.”
(§ 1170.91, subd. (a), italics added.) Effective January 1, 2019,
defendants sentenced prior to January 1, 2015, may “request
resentencing pursuant to subdivision (a).” (Id., subd. (b).)
By its express, clear, and unambiguous terms, veterans’
resentencing under section 1170.91 applies only to individuals
who are serving determinate sentences imposed under
subdivision (b) of section 1170. (People v. Estrada (2020) 58
Cal.App.5th 839.) Abraham, however, was sentenced to a third-
strike indeterminate sentence under section 1170.12. Such a
sentence “fall[s] entirely outside [the] ambit” of section 1170.
(People v. Sasser (2015) 61 Cal.4th 1, 8.) As the legislative
history of section 1170.91 also makes clear, the statute was
intended to “simply require[] a court to consider military status
and the presence of mental health problems induced by that
service as factors of mitigation in determinate sentencing” and
“simply directs the judge to consider such circumstances in
determining whether or not to grant probation, or whether to
impose the lower prison term for convictions and enhancements
punished under the determinate sentencing law.” (Sen. Com. On
6
Public Safety, Analysis of Assembly Bill (AB) 2098 (2013-2014
Reg. Sess.) as amended May 29, 2014, italics added.) Although
Abraham’s sentence includes a four-year enhancement, that
enhancement was also imposed pursuant to section 1170.12, not
section 1170. (§ 1170.12, subd. (c); People v. Anderson (1995) 35
Cal.App.4th 587, 593.)
Abraham “acknowledges that the court has no authority to
recall an indeterminate sentence under section 1170.91,
subdivision (b) if the prescribed punishment for the underlying
offense is an indeterminate life sentence.” He claims, however,
that “[a]s a matter of fairness, if the prescribed punishment for
the underling offenses is a determinate sentence, then section
1170.91, subdivision (b) authorizes a court to reconsider its prior
imposition of an indeterminate sentence.” He then offers that
“[t]he prior imposition of such a sentence may have resulted from
the court not considering evidence of military trauma as a factor
in mitigation when it originally denied [Abraham’s] Romero
motion.” (Fn. omitted.)
This argument ignores the plain language of the statute.
Section 1170.91 is not implicated in the grant or denial of a
Romero motion. The statute only requires the consideration of a
defendant’s military history and mental health problems “when
imposing a term under subdivision (b) of section 1170,” i.e., a
determinate term. (§ 1170.91, subd. (a).)4 Because appellant was
4 For the first time on appeal, Abraham also claims that the
trial court “has [the] same authority to recall a three strikes life
sentence under section 1170.91(b) as it does under section
1170(d).” (Capitalizations omitted.) Aside from being forfeited,
this claim lacks merit because the court’s authority to recall a
sentence under section 1170, subdivision (d) must be exercised
7
sentenced to an indeterminate term, section 1170.91 does not
apply.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
PERREN, J.
We concur:
GILBERT, P. J.
TANGEMAN, J.
“within 120 days of the date of commitment . . . .” Moreover, that
authority permits the court to “resentence the defendant in the
same manner as if [he or she] had not previously been
sentenced.” (§ 1170, subd. (d)(1).) Section 1170.91 contains no
such provision.
8
Vincent J. O’Neill, Jr., Judge
Superior Court County of Ventura
______________________________
Wayne C. Tobin, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Michael R. Johnsen, Supervising
Deputy Attorney General, and David W. Williams, Deputy
Attorney General, for Plaintiff and Respondent.