People v. Sherman

Filed 5/9/23
CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D080241

Plaintiff and Respondent,

v. (Super. Ct. No. SCD148091)

ANGELO SHERMAN,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County,
David M. Gill, Judge. Affirmed.
Alex Kreit, under appointment by the Court of Appeal, for Defendant
and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland, Assistant Attorney General,
Christopher Beesley and Daniel Rogers, Deputy Attorneys General, for
Plaintiff and Respondent.
Angelo Sherman petitioned for resentencing nearly 20 years after
sustaining multiple convictions and receiving a sentence of 123 years to life
for raping and sexually assaulting five different women, with a prior serious
felony conviction for rape of an unconscious woman. He contends that the
trial court improperly found him ineligible for resentencing under Penal Code
section 1170.91, subdivision (b), because he adequately alleged that he suffers

from a substance abuse problem related to his military service.1 The People
contend that Sherman is ineligible for resentencing under section 1170.91,
subdivision (c), which was added to the statute and made effective January 1,
2023, while this appeal was pending. Subdivision (c) now states that section
1170.91 does not apply to a person who has been convicted of a super-strike
offense (§ 667, subd. (e)(2)(C)(iv)) or an offense requiring registration as a sex
offender (§ 290, subd. (c)). We agree that section 1170.91, subdivision (c),
applies to cases already pending when it became effective and makes
Sherman categorically ineligible for relief. Accordingly, we affirm the
judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In 2001, a jury convicted Sherman of drugging, raping, and/or sexually
assaulting five women between 1993 and 1999. At his trial, two other victims
testified about similar sexual assaults committed by Sherman in 1993 and
1997. (People v. Sherman (Feb. 25, 2003, D037969) [nonpub. opn.].)
The jury convicted Sherman of four counts of forcible rape (§ 261, subd.
(a)(1)), four counts of rape by use of drugs (§ 261, subd. (a)(3)), three counts of
rape of an unconscious person (§ 261, subd. (a)(4)), rape of an unconscious
person with a foreign object (§ 289, subd. (d)), forcible rape with a foreign
object (§ 289, subd. (a)(1)), oral copulation of an unconscious person (§ 288a,
subd. (f)), four counts of sexual battery (§ 243.4), residential burglary (§ 459),
kidnapping for sexual purposes (former § 208, subd. (d)), kidnapping (§ 207,
subd. (a)), and kidnapping for rape (§§ 207, 209, subd. (b)(1)). The jury and
trial court also found true several enhancement and prior conviction

1 All further statutory references are to the Penal Code.
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allegations (§§ 667, 667.61, 668, 1170.12), including a 1998 serious felony
prior for rape of an unconscious woman.
On appeal, we reversed one of the counts of sexual battery and
remanded the matter for resentencing. (People v. Sherman (Feb. 25, 2003,
D037969) [nonpub. opn.].) On remand, the trial court resentenced Sherman
to an indeterminate term of 95 years to life, plus a consecutive determinate
term of 28 years, for a total of 123 years to life. We affirmed the judgment on
resentencing. (People v. Sherman (May 27, 2004, D043220) [nonpub. opn.].)
In 2020, Sherman filed a motion to recall his sentence and for
resentencing under section 1170.91. He argued that he was eligible for
resentencing because he had served in the military; he suffered from a
substance abuse problem as a result of his military service; he had been
prescribed anti-depressants for depression in prison; and his substance abuse
and mental health conditions were not considered as mitigating factors at his
sentencing.
The trial court held a hearing on the request for resentencing. The
court explained that it did not see any evidence of a connection between a
mental health issue related to Sherman’s military service and his commission
of the sex offenses. The court also expressed its opinion that there was no
evidence Sherman’s offenses were “a result of his substance abuse.” The
court stated, “I don’t see any basis for doing anything other than reinstating
and imposing the sentence previously ordered. I just don’t think there’s a
necessary connection.” Accordingly, the court “reinstated” the sentence
previously imposed.

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 DISCUSSION
I
Sherman argues that the trial court erred by purportedly finding him
ineligible for relief under the version of section 1170.91 in effect at the time of
the trial court proceedings. In response, the People assert that Sherman is
categorically ineligible for relief under the 2022 amendment to section
1170.91 that became effective on January 1, 2023. (Stats. 2022, ch. 721 (Sen.
Bill 1209), § 1, eff. Jan. 1, 2023.) This is a question of statutory
interpretation, which we review de novo. (People v. E.M. (2022) 85
Cal.App.5th 1075, 1082.)
A. Section 1170.91
Section 1170.91 was enacted in 2014. The original statute 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,
post-traumatic stress disorder, substance abuse, or mental health problems.
(Former § 1170.91, added by Stats. 2014, ch. 163, § 2, eff. Jan. 1, 2015; People
v. Stewart (2021) 66 Cal.App.5th 416, 422–423 (Stewart).) As amended, this
sentencing provision is now contained in section 1170.91, subdivision (a).
In 2018, the Legislature added subdivision (b) to section 1170.91.
Subdivision (b) authorizes retrospective relief for previously sentenced
criminal defendants who may suffer from one of the qualifying conditions as a
result of their military service. As originally enacted, subdivision (b) allowed
a defendant who was sentenced before January 1, 2015 to petition the court
for a recall of the sentence and request resentencing “pursuant to subdivision
(a)” if his or her qualifying condition “was not considered as a factor in
mitigation at the time of sentencing.” (Former § 1170.91, subd. (b)(1)(A), as

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amended by Stats. 2018, ch. 523 (Assem. Bill 865), § 1, eff. Jan. 1, 2019.)
Like subdivision (a), subdivision (b) originally applied only to defendants who
were eligible for determinate sentences. (Stewart, supra, 66 Cal.App.5th at
pp. 423–424.)
In 2022, the Legislature amended the statute again. (Stats. 2022,
ch. 721 (Sen. Bill 1209), § 1, eff. Jan. 1, 2023.) The 2022 amendment both
expanded and restricted eligibility for relief. In relevant part, it expanded
subdivisions (a) and (b) to include those serving indeterminate sentences; it
eliminated the requirement that the defendant must have been sentenced
before January 1, 2015 to be eligible for resentencing; and it added a
provision explicitly stating that subdivision (b) “shall apply retroactively”
(§ 1170.91, subd. (b)(10)). At the same time, however, it restricted eligibility
by adding subdivision (c), a carve-out provision stating that “[t]his section
does not apply to a person convicted of, or having one or more prior
convictions for, an offense specified in clause (iv) of paragraph (C) of
paragraph (2) of subdivision (e) of Section 667 or an offense requiring
registration pursuant to subdivision (c) of Section 290.” (§ 1170.91, subd. (c).)

These changes became effective on January 1, 2023.2
B. Analysis
The People argue that section 1170.91, subdivision (c), applies to
Sherman and makes him categorically ineligible for relief because he was

2 Though not relevant to this appeal, the 2022 amendment also added
language stating that if the petitioner is eligible for resentencing, the court
may either (1) modify the original sentence by reducing the term of
imprisonment; or (2) vacate the conviction and impose judgment on any
necessarily included or lesser related offense, whether or not charged in the
original pleading, and then resentence the petitioner to a reduced term of
imprisonment with the concurrence of the defendant and the prosecutor.
(§ 1170.91, subd. (b)(3)(A) & (B).)
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convicted of offenses that require registration as a sex offender. In response,
Sherman does not dispute that he would be ineligible for relief under
subdivision (c). However, he contends that subdivision (c) does not apply to
him because it did not become effective until January 1, 2023, after the trial
court proceedings on his section 1170.91 petition, and it does not apply
retroactively to pending cases.
We agree with the People. “The repeal of a statutory right or
remedy . . . presents entirely distinct issues from that of the prospective or
retrospective application of a statute.” (Physicians Com. for Responsible
Medicine v. Tyson Foods, Inc. (2004) 119 Cal.App.4th 120, 125.) “Where, as
here, the Legislature has conferred a remedy and withdraws it by
amendment or repeal of the remedial statute, the new statutory scheme may
be applied to pending actions without triggering retrospectivity
concerns . . . .” (Brenton v. Metabolife International, Inc. (2004) 116
Cal.App.4th 679, 690 (Brenton).) This rule also applies to a partial repeal of
an existing statutory right or remedy. (Zipperer v. County of Santa Clara
(2005) 133 Cal.App.4th 1013, 1023 (Zipperer).) “The justification for this rule
is that all statutory remedies are pursued with full realization that the
Legislature may abolish the right to recover at any time.” (Governing Board
v. Mann (1977) 18 Cal.3d 819, 829 (Mann), internal quotation marks
omitted.)
“This general common law rule has been applied in a multitude of
contexts. Perhaps the rule’s most familiar application is in the criminal
realm, when our decisions have long recognized that under the common law
the repeal of a penal law without a saving clause invalidates all prosecutions
under the old law which have not become final as of the effective date of the
repeal.” (Mann, supra, 18 Cal.3d at p. 829.)

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 The same rule has also been applied to the repeal of a statutory
provision designed to ameliorate criminal punishment. (People v. Bradley
(1998) 64 Cal.App.4th 386, 396–397.) In Bradley, a statutory provision giving
courts the authority to strike prison priors (former § 1170.1, subd. (h)) was
repealed while the defendant’s appeal from his conviction was pending.
(Bradley, at pp. 391–392 & fn. 2.) In ordering resentencing, the Court of
Appeal had to consider whether the trial court on remand would be required
to exercise its sentencing discretion under this repealed statute, because the
defendant’s “criminal conduct and [original] sentencing preceded that
legislative decision.” (Id. at p. 396.) The Court of Appeal concluded that the
defendant had no right to invoke the repealed statute on resentencing. It
reasoned: “[F]ormer section 1170.1, subdivision (h) was a remedial statute
designed to allow a trial court to ameliorate the effects of a potentially
excessive sentence by striking certain enhancements in the face of mitigating
circumstances. [Citations.] The repeal of a statute which provides a remedy
to a party is fully prospective and applies to pending cases. . . . ‘The
reviewing court must dispose of the case under the law in force when its
decision is rendered.’ ” (Id. at p. 397, internal quotation marks omitted.)
We conclude that the same reasoning applies here. Section 1170.91 is a
remedial statute designed to allow the trial court to ameliorate the effects of
a potentially excessive sentence for criminal defendants who may suffer from
qualifying mental health conditions or substance abuse as a result of their
military service. By amending section 1170.91 to add subdivision (c)—a
carve-out provision making certain groups of defendants who were previously
eligible for relief categorically ineligible—the Legislature effectively
accomplished a partial repeal of the statute. (See Zipperer, supra, 133
Cal.App.4th at p. 1023 [“The substance of the legislation determines whether

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it constitutes a repeal.”].) 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. (Ibid.) Here, Sherman is asserting a purely statutory right to
be resentenced, but he has no vested right to resentencing under section
1170.91 because “[u]ntil it is fully enforced, a statutory remedy is merely an
‘inchoate, incomplete, and unperfected’ right, which is subject to legislative
abolition.” (Id. at p. 1024, internal quotation marks omitted.) Accordingly,
we must apply the current version of section 1170.91 in resolving this appeal,
including the carve-out in subdivision (c).
In arguing to the contrary, Sherman relies on the fact that the
retroactivity provision of section 1170.91 applies only to subdivision (b), not
subdivision (c). Subdivision (b)(10) states: “This subdivision shall apply
retroactively.” (Italics added.) Sherman contends that because the
subdivision (c) carve-out is not part of subdivision (b), it does not fall within
this retroactivity provision. For the reasons we have discussed, however, the
partial repeal of a remedial statute does not trigger retroactivity concerns if
no rights have vested; the partial repeal then applies prospectively to
pending cases as a matter of law. (Brenton, supra, 116 Cal.App.4th at
p. 690.) Sherman’s contrary interpretation would defeat the Legislature’s
purpose by affording relief to defendants the Legislature has now decided
should be categorically ineligible—such as Sherman himself.

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 The legislative history confirms that the Legislature did not intend

such a result when it included the retroactivity provision in subdivision (b).3
As first proposed in Senate Bill No. 1209, the substance of what eventually
became subdivision (c) was part of subdivision (b)—and was later moved to
its own subdivision for reasons having nothing to do with retroactivity.
Specifically, an early version of the bill would have added subdivisions (b)(10)
and (b)(11) as follows:
“(10) This subdivision does not apply to a person who has
one or more prior convictions for an offense specified in
clause (iv) of subparagraph (C) of paragraph (2) of
subdivision (e) of Section 667 or for an offense requiring
registration pursuant to subdivision (c) of Section 290.

“(11) This subdivision shall apply retroactively.” (Sen. Bill
No. 1209 (2021-2022 Reg. Sess.) as amended March 15,
2022.)

Under this version of the bill, there would have been no doubt that the
carve-out applied to pending cases because it was part of subdivision (b). As
explained in a legislative committee report, however, the carve-out was later
moved from subdivision (b)(10) to subdivision (c) just to clarify that the carve-
out applies to both original sentencing under subdivision (a) and resentencing
under subdivision (b). (Sen. Com. on Public Safety, Rep. on Sen. Bill
No. 1209 (2021-2022 Reg. Sess.), April 19, 2022, p. 10 [“The author intends to
amend this bill to address a drafting error in the bill. The amendments
ensure that the exclusions for persons who are required to register as a sex
offender or who have a prior conviction for a super strike applies [sic] to both

3 On our own motion, we take judicial notice of the legislative history
materials cited in this opinion under Evidence Code sections 452, subdivision
(c) and 459. (See Gananian v. Wagstaffe (2011) 199 Cal.App.4th 1532, 1541,
fn. 9 [“We may take judicial notice of legislative history materials on our own
motion.”].)
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the resentencing provisions as well as new sentences.”].) Because the
original version of the carve-out made clear that the Legislature intended it
to apply to pending cases along with the rest of subdivision (b), and the carve-
out was later moved to subdivision (c) for reasons having nothing to do with
the retroactivity provision, the legislative history supports our view that the
Legislature intended it to apply to pending cases.
The legislative history also suggests that the expansion of the statute
to include indeterminate sentences was directly linked to its restriction to
exclude super-strike offenses and offenses requiring registration as a sex
offender. The legislative committee reports discussed these two changes
together, without ever suggesting that the Legislature intended the former to
apply retroactively, but not the latter. (See, e.g., Sen. Com. on Public Safety,
Rep. on Sen. Bill No. 1209 (2021-2022 Reg. Sess.), April 19, 2022, p. 9; Assem.
Com. on Public Safety, Rep. on Sen. Bill No. 1209 (2021-2022 Reg. Sess.),
June 14, 2022, p. 6.) The Legislature evidently intended to eliminate the
general exclusion for indeterminate sentences and at the same time replace it
with a more targeted carve-out for the specified disqualifying offenses. In
these circumstances, it would defeat the Legislature’s intent to apply the
expanded eligibility provision to pending cases, but not the accompanying
replacement provision restricting eligibility.
Finally, one purpose of Senate Bill No. 1209 was “ ‘to ensure equal
treatment of all veterans’ ” by eliminating the provision restricting eligibility
for resentencing to those sentenced before January 1, 2015. (Assem. Com. on
Public Safety, Rep. on Sen. Bill No. 1209 (2021-2022 Reg. Sess.), June 14,
2022, p. 3.) Sherman’s interpretation of the law would undermine this goal
because it would result in similarly unequal treatment of veterans and
service members who filed petitions before January 1, 2023 versus those who

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filed later. By Sherman’s reasoning, the former group would be able to
escape the effect of the carve-out provision, whereas the latter could not.
We therefore conclude that section 1170.91, subdivision (c), applies to
pending petitions for resentencing filed before January 1, 2023, including
those pending on appeal. Sherman does not dispute that he was convicted of
offenses that require registration as a sex offender under section 290,
subdivision (c), making him ineligible for resentencing under section 1170.91,
subdivision (c). Accordingly, even assuming that the trial court erred by
finding Sherman ineligible for relief under the prior version of section
1170.91, Sherman is now categorically ineligible for relief under the version
currently in effect.
DISPOSITION
The judgment is affirmed.

BUCHANAN, J.

WE CONCUR:

DATO, Acting P. J.

KELETY, J.

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