Filed 9/13/23 P. v. Carlton CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Shasta)
----
THE PEOPLE, C096635
Plaintiff and Respondent, (Super. Ct. No. 10F3103)
v.
RALPH WILLIAM CARLTON,
Defendant and Appellant.
Defendant Ralph William Carlton was convicted in 2010 of sex offenses and
sentenced to 25 years to life plus six years. He now appeals from the trial court’s June
2022 order denying his petition for recall and resentencing pursuant to Penal Code former
section 1170.91.1 The trial court reasoned defendant was ineligible for relief because he
had been sentenced to an indeterminate term. Citing recent amendments to
section 1170.91 that went into effect on January 1, 2023, and enable those sentenced to
1 Undesignated statutory references are to the Penal Code.
1
indeterminate terms to seek relief (Sen. Bill No. 1209 (2021-2022 Reg. Sess.); Stats.
2022, ch. 721, § 1), defendant asks us to remand the matter for resentencing.
The People respond that the recent amendments are prospective only.
Alternatively, the People argue defendant is ineligible for resentencing under section
1170.91, subdivision (c), which 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)). Because the recent
amendments to section 1170.91 are only a partial repeal of an existing statutory right or
remedy, we conclude that we must apply the current version of the statute, which renders
defendant ineligible for relief. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In 2002, defendant molested his minor stepdaughter and her friend. He was
convicted of committing a lewd and lascivious act on a minor. Defendant again molested
his stepdaughter in 2010, this time when she was an adult. He was convicted of genital
penetration with a foreign object and three counts of sexual battery by unlawful restraint.
The trial court found true he was a habitual sexual offender and sentenced him to prison
for 25 years to life plus six years and ordered him to register as a sex offender. We
affirmed that judgment. (People v. Carlton (Mar. 15, 2012, C067749) [nonpub. opn.].)
In August 2021, defendant filed a petition for recall and resentencing. Defendant
declared he had served in the military from 1986 to 1992 and had a difficult time
readjusting to civilian life. He had attempted suicide and, due to his military service, was
suffering from mental illness, posttraumatic stress disorder, and substance abuse. At the
time of his crimes, he was smoking marijuana daily and taking over 100 opioid pills each
month. He had been a hard worker prior to his military service, and he was now
remorseful and participating in substance abuse programs.
2
In June 2022, the trial court denied defendant’s petition. Citing People v. Estrada
(2020) 58 Cal.App.5th 839, the trial court reasoned that defendant was ineligible for
relief because he had been sentenced to an indeterminate term.
DISCUSSION
1. History of section 1170.91
Enacted in 2014, section 1170.91 originally required courts engaged in
determinate sentencing to consider as mitigating factors certain conditions that
defendants might be suffering due to their military service. (Former § 1170.91, added by
Stats. 2014, ch. 163, § 2, eff. Jan. 1, 2015.) These conditions include sexual trauma,
traumatic brain injury, posttraumatic stress disorder, substance abuse, and mental health
problems. (Ibid.)
In 2018, the Legislature amended section 1170.91 to add retrospective relief for
defendants sentenced prior to 2015 who suffered one of the qualifying conditions as a
result of their military service. (Former § 1170.91, subd. (b), as amended by Stats. 2018,
ch. 523, § 1.) This provision applied only to defendants who had been sentenced to
determinate terms. (People v. Estrada, supra, 58 Cal.App.5th at p. 843.)
Section 1170.91 was amended again in 2022, expanding eligibility under
subdivisions (a) and (b) to those who were serving (or being sentenced to) indeterminate
sentences or who had been sentenced after January 1, 2015. (Sen. Bill No. 1209 (2021-
2022 Reg. Sess.); Stats. 2022, ch. 721, § 1, eff. Jan. 1, 2023.) The amended section
1170.91, subdivision (b) continued to state that the “subdivision shall apply
retroactively.” (§ 1170.91, subd. (b)(10); see also former § 1170.91, subd. (b)(1)(B).)
However, the Legislature also restricted eligibility by adding subdivision (c) that states,
“[t]his section 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)] or an
offense requiring registration pursuant to [section 290, subdivision (c)].” (§ 1170.91,
3
subd. (c).) Those who, like defendant, have been convicted pursuant to sections 288 or
289 are required to register as sex offenders. (§ 290, subd. (c)(1).)
2. Analysis
Defendant argues remand for resentencing is necessary because the recent
amendments to section 1170.91 mean he is no longer ineligible for relief based on his
indeterminate sentence. Defendant also responds to the People’s argument that he is
ineligible for relief under section 1170.91, subdivision (c) because he was convicted of
offenses that require registration as a sex offender. His response is that while
subdivision (b) states that “[t]his subdivision shall apply retroactively” (§ 1170.91,
subd. (b)(10)), subdivision (c) is silent on the matter. As such, defendant argues, the
Legislature made clear its intent that only subdivision (b) applies retroactively to nonfinal
cases like his.
This same question was recently considered in People v. Sherman (2023)
91 Cal.App.5th 325 (Sherman). The defendant there sexually assaulted five different
women and was convicted of multiple sexual offense charges. He was sentenced to 123
years to life and was required to register as a sex offender. (Id. at pp. 328, 333.) In 2020,
the defendant filed a motion for recall and resentencing under section 1170.91, arguing
he suffered substance abuse problems as a result of his military service. The trial court
denied the defendant’s motion because it found no connection between his mental health
issues and his commission of the sex offenses. (Id. at pp. 328-329.) On appeal, the
People argued the defendant was categorically ineligible for relief under the newly
adopted section 1170.91, subdivision (c) because he was convicted of offenses that
required him to register as a sex offender. (Id. at p. 330.) The defendant responded that
the statute’s plain language meant that the retroactivity provision of section 1170.91
applies only to subdivision (b), and not subdivision (c). (Id. at p. 332.) The appellate
court agreed with the People. (Id. at p. 330.)
4
As the Sherman court explained: “ ‘The repeal of a statutory right or
remedy . . . presents entirely distinct issues from that of the prospective or retrospective
application of a statute.’ [Citation.] ‘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 . . . .’ [Citation.] This rule also applies to a partial repeal of an existing
statutory right or remedy. [Citation.] ‘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.’ ” (Sherman, supra, 91 Cal.App.5th at pp. 330-331.)
Noting that the rule has been “applied to the repeal of a statutory provision
designed to ameliorate criminal punishment,” the Sherman court held that the rule
applied to the recent amendments to section 1170.91. (Sherman, supra, 91 Cal.App.5th
at p. 331.) Section 1170.91 is a remedial statute intended to permit the trial court to
ameliorate a potentially excessive sentence for those who may suffer a qualifying
condition due to their military service. In adding subdivision (c) to section 1170.91, the
Legislature took away the possibility of relief for certain groups of defendants who had
previously been eligible, thereby “effectively accomplish[ing] a partial repeal of the
statute.” (Ibid.) Because the defendant was asserting a purely statutory right to be
resentenced, he had no vested right to resentencing, and the appellate court was required
to apply the current version of section 1170.91 in resolving his appeal, “including the
carve-out in subdivision (c).” (Id. at pp. 331-332.) Given that the defendant was
categorically ineligible for relief under the current version of section 1170.91, the
appellate court affirmed. (Id. at pp. 333-334.)
We agree with Sherman. Defendant here was asserting a purely statutory right to
be resentenced, and he had no vested right to resentencing. So we must apply the current
version of section 1170.91 in resolving his appeal. Pursuant to section 1170.91,
5
subdivision (c), defendant is ineligible for relief because he was convicted of crimes that
require him to register as a sex offender.
DISPOSITION
The trial court’s denial order is affirmed.
/s/
MESIWALA, J.
We concur:
/s/
KRAUSE, Acting P. J.
/s/
BOULWARE EURIE, J.
6