Filed 10/20/23 P. v. Moon CA5
Opinion following recall of remittitur
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F085294
Plaintiff and Respondent,
(Kings Super. Ct.
v. No. 13CM2377HTA)
JOSHUA DANIEL MOON,
OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Kings County. Robert Shane
Burns, Judge.
Carlo Andreani, under appointment by the Court of Appeal, for Defendant and
Appellant.
Office of the Attorney General, Sacramento, California, for Plaintiff and
Respondent.
-ooOoo-
* Before Hill, P. J., Poochigian, J. and Detjen, J.
INTRODUCTION
In 2014, appellant and defendant Joshua Daniel Moon (defendant) was convicted
after a jury trial of seven counts of committing sexual and assaultive offenses against his
two minor children and sentenced to a determinate term of seven years plus an
indeterminate term of 15 years to life in prison. In his direct appeal, this court reduced
one felony conviction to a misdemeanor, ordered an allegation stricken, and remanded for
resentencing. On remand, the trial court modified the sentence, and his aggregate term
remained the same. On appeal from the remand, we affirmed the court’s resentencing
order.
In 2022, defendant filed a petition in the trial court for resentencing pursuant to
Penal Code1 section 1170.91, subdivision (b), which permits individuals to petition for
resentencing when certain military-related trauma was not considered as a mitigating
factor at the time of sentencing. The trial court appointed counsel, reviewed defendant’s
records, conducted a hearing, and denied the petition, finding defendant was not eligible
for resentencing on the indeterminate sentences imposed for his convictions based on the
statutory provisions, and he was not eligible or suitable for resentencing on the
determinate terms imposed for the other offenses.
In this appeal from the court’s denial of defendant’s section 1170.91 petition, his
appellate counsel filed a brief which summarized the facts with citations to the record,
raised no issues, and asked this court to independently review the record. (People v.
Wende (1979) 25 Cal.3d 436.) Defendant filed a letter brief raising certain issues. We
affirm.
1 All further statutory citations are to the Penal Code unless otherwise indicated.
2.
FACTS2
Defendant and K. were married in 2001 and were the parents of two children. At
the time of defendant’s jury trial in 2014, M. was eight years old and her brother, J., was
12 years old.
Defendant was in the military for most of the marriage. From June 2004 through
April 2011, the family lived on the Naval Air Base (the Base) in Lemoore. From
December 2004 through October 2008, they lived in a house with a red roof on Simmons
Court. Between October 2008 and April 2009, K. and the children lived in Nevada, as
she and defendant were having marital problems. In April 2009, K. and the children
returned to defendant. From then until April 2011, the family lived on the Base in a
house with a gray roof on Banshee Court.
K. and defendant separated in May 2012, after which K. and the children moved to
Nevada. In her complaint for divorce filed October 3, 2012, K. requested sole physical
custody of the children, with defendant to have supervised visitation. Under the terms of
the final decree, which was filed February 27, 2013, K. and defendant received joint legal
custody, while K. had primary physical custody. Defendant received supervised
visitation. His visitation had to be set up at the house of one of his family members and
to be arranged around K.’s work schedule and the children’s schedules. Visitation took
place once or twice a month.
On March 6, 2013, J. told K. that defendant had abused J. and M. K. asked why J.
waited so long to tell her about the abuse. J. said he was afraid of defendant. When K.
observed defendant had been out of the house for several months, J. explained that with
2 After notice to the parties, we have taken judicial notice of this court’s own
records and nonpublished opinions in defendant’s direct appeal, People v. Moon (Jan. 9,
2017, F069168 (Moon I)) and his appeal from the resentencing hearing, People v. Moon
(May 23, 2018, F076134 (Moon II)). The following facts and procedural history of
defendant’s convictions are from these records. (Evid. Code, § 450, § 452, subd. (d),
§ 59.)
3.
K. and defendant fighting so much and leaving and going back, J. was unsure if K. would
go back to defendant again, so he needed to wait to be sure.
K. did not immediately report the abuse to authorities, because she wanted to wait
for M. — who had confided in J. only a few days earlier — to come to her. On April 6,
2013, J. apparently persuaded M. to talk to K. M. said defendant urinated in her mouth
and then made her suck on his penis. M. said it happened once in Lemoore and once in
Nevada.
The next day, April 7, 2013, K. went to the Lyon County Sheriff’s Department and
made a report. Detective White subsequently interviewed both children.
Charged Acts Against M. (Counts 1–2 & 4–6)
On one occasion when the family lived in California in the house with the gray
roof, M. was lying on her bed when defendant came into her room. He told her to get on
the floor. He pulled down his pants and knelt over her, then he made her suck his penis.
He told her it was just a dream, but she knew it was real. Defendant whispered to her not
to tell anybody. M. said she had to go to the bathroom, but he would not let her. When
she said she really needed to go, he told her to urinate in his mouth. She did, although
she did not want to. Defendant then left the room, while M. got back in bed and went to
sleep.
Defendant told M. not to tell anybody about the things he did. He said that if she
told anyone, he would do it again. He told her this in Nevada and in California, after he
put his penis in her mouth. In California, he specifically said she should not tell her
mother or brother.
Detective White conducted a forensic interview with M. on April 16, 2013. M.
disclosed that defendant had awakened her during the night and told her to lie back. He
urinated in her mouth and then had her “suck it.” M. said this happened in California.
Kings County Sheriff’s Detective Speer interviewed M. on June 11, 2013. M.
described an incident in California in which she sucked defendant’s penis, and he
4.
urinated in her mouth. She described the urine’s color, odor, and taste (“eww”), and said
she spit it in the toilet. M. said she was four or five when this happened. Speer found no
indication M. had been coached.
Charged Acts Against J. (Counts 7 & 8)
During the time the family lived on Simmons Street, J. and defendant were sitting
on the couch in the living room, watching television, when defendant told J. to lie down.
Defendant lay on J. with his stomach on J.’s face. J. managed to kick him off, but
defendant put a plastic bag over J.’s head and lay on him again. J. was unable to breathe.
J. started kicking, and defendant got up. J. removed the plastic bag and ran into the
garage, where he waited until K. and M. came home. J. did not tell his mother, because
he was afraid defendant would hurt him again. A couple days after the incident,
defendant said if J. told anybody, defendant would hurt J.
There was a swimming pool on the Base. Defendant told J. to jump off the diving
board. J. did not want to, as he was not a good swimmer. Defendant kept telling J. to
dive off the diving board, and eventually J. crouched down, crying. When the lifeguard
asked J. if he knew how to swim and J. said no, defendant got very angry and said they
were going home. Once they got home, defendant started yelling at J. and punching him
with his fists. Defendant gave J. a black eye and pounded on his chest, causing painful
bruises. Defendant said J. had embarrassed him in public. He told J. to tell people J. hit a
pole or something. When J.’s friends and teachers asked, J. said he fell on a pole.
Uncharged Acts
During the marriage, defendant watched adult pornography that sometimes
showed males urinating in females’ mouths or multiple females urinating on a single
male. Defendant asked K. to watch these images. Sometimes, it led to sexual intercourse
between defendant and K. Defendant also asked K. to view pornography depicting
women sitting on men’s faces. Again, this sometimes led to defendant and K. having
sexual intercourse. Sometimes when they were in the shower, K. would accede to
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defendant’s request that she urinate in his mouth. Defendant also liked to urinate on K.,
but she did not like him to urinate in her mouth and tried to avoid it as much as she could.
The urination happened a few times a week. It caused conflicts in the marriage, because
defendant would get very angry with K. when she would not do it. She did not like doing
it, although it did sometimes lead to sexual intercourse. Around 2005, defendant began
restricting K.’s breathing once or twice a month as part of sexual intercourse. First, he
put pillows over her face, then blankets. He then started using plastic grocery bags.
When K. told him she was scared about not being able to breathe, defendant said he
would never let anything happen to her.
One day, when the family lived on the Base and M. believed she was in
kindergarten, she and defendant were home alone. M. was lying on her bed when
defendant sat on her stomach, making it hard for her to breathe. M. felt scared, and her
lower body hurt for a couple hours. Defendant told her not to tell anyone. Eventually,
however, M. told one of her teachers. A lady came to the house and asked M. questions
about what defendant did. M. did not tell what he had done, because, when the lady
parked in front of the house, defendant told M. not to tell her.
Once, when the family lived in Nevada and M. was six years old, defendant sat on
the couch while M. was on her knees on the floor. Defendant pulled down his pants and
scooted close to her. She asked if she could play on the computer, but he said she had to
suck his penis first. She did not want to, but he put his hands on the back of her head and
pushed her head to his “private spot” and made her orally copulate him. After defendant
put his penis in M.’s mouth, he urinated in her mouth. M. spit the urine out in the
bathroom sink.
On another occasion in Nevada, defendant told M. to take off her pants and lie on
defendant’s bed. Defendant then took off his pants and lay on M. His stomach, penis,
and legs were touching her body, with his penis touching her “no-no square” on the
outside. Defendant was moving his body and it felt “weird and scary.” The tip of his
6.
penis went inside her “no-no square,” but nothing came out of his penis. Defendant’s
face looked “frustrated and tired.”3
Defense Evidence
Manuela Wyatt, a representative of Kings County Child Protective Services,
testified she went to defendant’s home in February 2010 in response to abuse allegations,
and her purpose was to assess the situation and determine whether the allegations were
true or unfounded. Wyatt was unable to determine if M. had been sexually abused.
Prior to the visit, Wyatt did not notify the family she was coming. She did not
recall if she parked in front of the residence. K. answered the door in response to Wyatt’s
knock. Defendant approached behind her. He had a blanket around him. The door was
closed, as he said he needed to change. Defendant and K. went back inside the residence,
while Wyatt and other agents remained outside. After about five minutes, defendant and
K. returned to the door. Wyatt did not see defendant speak to M., although she was
unable to see through the windows.
PROCEDURAL BACKGROUND
Jury Trial and Convictions
In February 2014, after a jury trial, defendant was convicted of committing the
following offenses against M. between June 1, 2008, and April 30, 2011, as alleged in the
first amended information: count 1, oral copulation with a child 10 years of age or
younger (§ 288.7, subd. (b)); count 2, aggravated sexual assault of a child under age 14
by a person more than seven years older than the victim (§ 269, subd. (a)(4)); counts 4
and 6, lewd and lascivious acts on a child under age 14 by use of force, violence, duress,
3 There was also evidence defendant sat on M.’s stomach and restricted her
breathing, lay on top of her while his penis possibly slightly penetrated her vagina, and
pushed her head to his penis. Although these acts were not charged, jurors were told they
could consider uncharged oral copulation and lewd and lascivious acts with a minor as
evidence defendant was disposed to commit sexual offenses, and so was likely to have
committed the charged offenses.
7.
menace, and/or threat of great bodily harm (§ 288, subd. (b)(1)); and count 5, child abuse
under circumstances likely to produce great bodily harm or death, to wit, urinating in
M.’s mouth (§ 273a, subd. (a)).4
As to counts 4 and 6, the jury further found defendant committed the offenses by
the use of force, violence, duress, menace, or fear of immediate and unlawful bodily
injury (§ 1203.066, subd. (a)(1)), and that defendant had substantial sexual conduct with
M. (id., subd. (a)(8)).
Appellant was also convicted of committing the following offenses against J.
between March 6, 2007, and April 9, 2013, as alleged in the first amended information:
count 7, misdemeanor child abuse (§ 273a, subd. (b)); and count 8, assault with a deadly
weapon, to wit, a plastic bag (§ 245, subd. (a)(1)). As to counts 7 and 8, the jury found
the statute of limitations was extended pursuant to section 803, subdivision (d), because J.
and defendant were absent from the state.
The Probation Report5
The probation report prepared in 2014 for defendant’s sentencing hearing stated
that he served in the United States Navy and was honorably discharged on June 1, 2011.
The probation report further stated that defendant (born 1983) reported he was
diagnosed with dissociative disorder in 2007 and was taking antidepressants. Defendant
reported he was diagnosed with posttraumatic stress disorder (PTSD) in 2007, and he was
not under the care of any physician or taking medication for that condition.
4 In count 3, defendant was charged with forcible oral copulation against M., in
violation of section 288a, former subdivision (c)(2). The jury did not return a verdict on
this count because it was instructed the offense was charged in the alternative with
count 2.
5 We are summarizing the 2014 probation report prepared for defendant’s
sentencing hearing because, as will be explained below, the trial court expressly cited
findings in that report when it addressed defendant’s section 1170.91 petition.
8.
Defendant stated was employed as a gas station cashier in 2011 through 2012 and
left the job “due to his disability interfering with work.” He received VA benefits until
he was incarcerated.
Defendant reported that by the time he was 22 years old, he was a heavy consumer
of liquor and beer. He drank approximately a 30-pack of beer per week and one bottle of
liquor per week until 2012. He also used marijuana on a weekly basis until 2013.
Defendant gave a statement to the probation officer where he maintained his
innocence, claimed his former wife was responsible for the charges as retaliation to an
unfavorable divorce outcome, and insisted he never harmed his children.
The Sentencing Hearing
On March 27, 2014, Judge Robert Burns, who presided over defendant’s jury trial,
conducted the sentencing hearing.
The court stated that defendant was not eligible for probation, but it would not
grant probation even if he was eligible based upon the facts of the case because the
crimes involved a high degree of cruelty and callousness.
As to the imposition of sentence, the court found defendant’s conduct of
“urinating in a child’s mouth for sexual gratification … occurring from the degradation of
another human being seems to be particularly callous. And suffocating a child with a
plastic bag to obtain sexual gratification from the fear you inflicted on the child seems …
to be particularly callous, as well as cruel towards that individual.” The court found
defendant engaged in violent conduct and took advantage of his position of trust to
commit the sexual and physical assaults against his children. The court intended to
impose an aggregate term of seven years plus 15 years to life and would impose
consecutive terms on certain counts because the crimes and objectives involved separate
victims and acts of violence, that were committed on different occasions with
independent criminal objectives, and defendant had a reasonable time to reflect on his
conduct but continued to commit the offenses.
9.
Defense counsel asked the court to impose lower and/or concurrent determinate
sentences for some of the convictions because defendant had no prior record, he was a
veteran with an honorable discharge, and “[t]hat certainly does not make up for the acts,
but he is also doing life in prison.”
The prosecutor replied defendant committed some of the most vile acts that could
be done against his children over a significant period of time.
The court sentenced defendant to an aggregate term of seven years plus 15 years to
life as follows: the midterm of six years for count 6, plus a consecutive term of one year
(one-third the midterm) for count 8; followed by a consecutive term of 15 years to life for
count 1.
The court imposed and stayed determinate terms for counts 4 and 5, and a
concurrent term for misdemeanor count 7. The court also imposed 15 years to life for
count 2 and stayed that term pursuant to section 654.
After imposing sentence, the court advised defendant that he was ordered to
register as a sex offender pursuant to section 290 upon his release from custody.
Direct Appeal
On January 9, 2017, this court filed the nonpublished opinion in Moon I, supra,
F069168, defendant’s direct appeal, and held the evidence failed to establish the act that
formed the basis for count 5 was committed under circumstances likely to produce great
bodily harm or death. We further held there was substantial evidence of duress presented
to affirm the convictions on counts 2, 4, and 6, and the trial court was not required to stay
the sentence on count 6. However, we concluded the substantial sexual conduct finding
as to count 6 must be stricken.
We modified count 5 from felony to misdemeanor child abuse in violation of
section 273a, subdivision (b); order the true finding on the section 1203.066,
subdivision (a)(8) allegation stricken as to count 6; and remanded for resentencing.
10.
Remand for Resentencing
On June 29, 2017, Judge Burns conducted the resentencing hearing on remand.
The court imposed one year in jail for misdemeanor count 5 and stayed that term
pursuant to section 654. The court also ordered the substantial sexual conduct finding on
count 6 stricken. Defendant’s sentence remained seven years plus 15 years to life.
Appeal After Resentencing
On May 23, 2018, this court filed the nonpublished opinion that affirmed the trial
court’s order after resentencing. (Moon II, supra, F076134.)
We first rejected defendant’s attempts to raise issues regarding his jury trial and
the sentences imposed on the other counts. As to the court’s orders at the resentencing
hearing, defendant argued “he suffered from dissociative disorder, post-traumatic stress
disorder, and sleep apnea, as diagnosed by the United States Navy. He asserts that the
judge, prosecutor, and his defense attorneys all knew he suffered from these disabilities,
but ‘nothing was done by any of them.” We held that to the extent defendant raised a
claim of ineffective assistance “in failing to alert the resentencing court to defendant’s
disabilities and pursue accommodations for defendant, defendant still must show that he
was harmed by counsel’s failure – that is, he must show a reasonable probability that the
resentencing would have been more favorable to him had counsel not failed in this
regard. Defendant makes no such showing. He does not explain what accommodations
he needed or wanted and how those accommodations would have changed the outcome
of the resentencing. Under these circumstances, we have nothing upon which to
conclude defense counsel was ineffective.” (Moon II, supra, F076134.)
DEFENDANT’S SECTION 1170.91 PETITION
On March 11, 2022, defendant filed, in pro. per., a petition in the trial court for
resentencing pursuant to 1170.91, and for the court to determine whether he satisfied the
statutory criteria of “being a member of the United States military who may be suffering
from post traumatic brain injury, sexual trauma, substance abuse, or mental health
11.
problems as a result of his military service, to consider that circumstances as a factor in
mitigation when imposing a term pursuant to … Section 1170.91.” Defendant submitted
medical and military records in support of his petition.
The Court’s Initial Order
On May 26, 2022, Judge Burns, who presided over defendant’s trial and
sentencing hearing, held the first hearing on defendant’s petition. The court stated
defendant had “proffered documentation of his military service and associated disability,”
and “it would presume, for purposes of this analysis, that defendant is a person described
by Section 1170.91(a).”
The court denied the petition as to the indeterminate sentences imposed for
counts 1 and 2, and the misdemeanor sentence for count 5, because section 1170.91
excluded such terms from its resentencing provisions.
The court held that under section 1170.91, defendant was potentially eligible for
resentencing as to the determinate terms imposed for counts 4, 6, and 8. The court
appointed counsel for defendant and set the matter for a further hearing.
Further Proceedings
On August 5, 2022, the court held another hearing on the petition, and stated
defendant sought resentencing because the court “did not consider trauma associated with
his military service as a mitigating factor at the original sentencing in 2014.”
The court further stated that a fully updated sentencing report was not required
unless requested by one of the parties, and the original probation report appeared to be
sufficient. The court directed the probation department to review the supplemental
mitigating factors raised by defendant, and for a letter of judicial notice addressing those
factors. The parties agreed on both matters.
The Probation Department’s Evaluation
On August 25, 2022, the probation department filed a “Letter of Judicial Notice”
with the trial court, that reviewed and summarized defendant’s military service and
12.
medical records, to address “any mitigating factors” related to PTSD “as a result of
military service.”
The report concluded that based upon the review of defendant’s military and
medical records, his “Chronic PTSD was not caused by his military service, given the
defendant was honorably discharged from service for mental health conditions deemed
not combat related. Furthermore, the medical records do not provide thorough
information to suggest otherwise. Therefore, it does not appear the defendant’s Chronic
PTSD qualifies as a mitigating factor.” (Italics added.)
On September 2, 2022, the court provides the parties with the probation
department’s letter of judicial notice and report and set a hearing on the merits of
defendant’s petition.
The Court’s Hearing on the Petition
On September 15, 2022, the court convened the hearing and stated it had reviewed
defendant’s petition, and the attached medical and military reports.
The prosecutor argued the petition should be denied because defendant’s medical
and military records did not establish his “anxiety and memory loss were caused by his
military service,” and “the mental health issues don’t appear to be directly related to the
crimes that were committed.” The records shows that defendant joined the Navy in 2003.
Defendant and his wife were married in 2001, defendant began engaging in acts against
his wife at that time, and these acts escalated to the offenses committed on his children
over a long period of time. “Nothing indicates that there was some sort of mental health
break that occurred and then resulted in the crimes. They were escalating from the
marriage beginning in 2001 through 2011, even before the military service began in
2003. And so the People believe that that shows that the mental health issues that
presented in the records did not relate to the crimes or caused the crime as it appears that
they began even before the mental health records began in 2003.” Defense counsel
submitted the matter.
13.
Denial of the Petition
The court stated it was denying defendant’s petition for resentencing as to the
determinate sentences imposed for his convictions because he was “neither eligible nor
suitable” under section 1170.91.
“[I]t appears from the records that the [D]epartment of the Navy discharged
[defendant] for a service connected condition … of other specified trauma
and stress disorder, and unspecified dissociative disorder, which previously
had been characterized as an anxiety disorder not otherwise specified. It
indicated that he was 50 percent disabled, and that determination was based
upon his forgetting names, having a difficulty in adapting to stressful
circumstances, difficulty in adapting to work, depressed mood, difficulty in
adapting to a work-like setting… There is nothing in the documentation
from the military provided to the Court that indicates that any of that was
as to the statute says was a result of his military service. In fact, the only
factual description the Court could find in the records was from a report
from [November 2007] that indicates that [defendant] was suffering
memory loss and depression, and that he had indicated that he had a long
history of abuse. Stating that in his childhood his father was incarcerated
for attempted murder and robbery, and shortly thereafter was sent to a
forensic psychiatric unit and that his mother had numerous boyfriends who
were physically abusive to her and [defendant]. And that he at the age of
… 15 years old indicated he attempted suicide by taking an overdose of
Ritalin, and then indicated at the age of 16 he was raped by a female cousin
resulting in her pregnancy for which he now pays child support.
“All of that occurred before the age of 16 … which would be long
before his military service. And if you read the statute itself the statute says
the Court has to consider the mitigating factor when the mental health
problem that is being addressed [in] section 1170.91 [was] as a result of his
or her military service. There is nothing presented in the records that
suggests his mental health issues were a result of his military service ….”
(Italics added.)
The court further held that even if defendant was eligible, it was not suitable for
the court to exercise its discretion to resentencing him:
“[T]here is nothing in the reports provided that suggest how that mental
health issue would be related to his conduct in any form or manner in the
crimes that were committed in this case. There is nothing about forgetting
names or having a difficulty adapting to stress or difficulty adapting to [his]
14.
work schedule, those sort of things that have any relationship to sexually
assaulting children or a spouse, or physically abusing children or a spouse.
And there is nothing related in the reports provided to the Court that would
suggest some sort of causal connection that would diminish [defendant’s]
culpability for the crimes that he committed based upon those factors.”
(Italics added.)
On November 9, 2022, defendant filed a timely notice of appeal from the court’s
order that denied his section 1170.91 petition for resentencing.
DISCUSSION
As noted above, defendant’s counsel filed a Wende brief with this court on
April 14, 2023. The brief also includes the declaration of appellate counsel indicating
that defendant was advised he could file his own brief with this court. By letter on the
same day, we invited defendant to submit additional briefing. As will be discussed
below, defendant submitted a letter briefing raising issues regarding the denial of his
section 1170.91 petition, and has also attempted to raise issues regarding his trial and
original sentencing.
I. Section 1170.91
We begin with the provisions of section 1170.91, which was enacted in 2014 and
became effective on January 1, 2015. (People v. King (2020) 52 Cal.App.5th 783, 788;
People v. Sherman (2023) 91 Cal.App.5th 325, petn. for review pending, petn. filed June
15, 2023 (Sherman).) “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, posttraumatic stress disorder, substance abuse, or mental health
problems. [Citations.] As amended, this sentencing provision is now contained in
section 1170.91, subdivision (a).” (Sherman, supra, at p. 329.)
“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
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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’ [Citation.] Like
subdivision (a), subdivision (b) originally applied only to defendants who were eligible
for determinate sentences.” (Sherman, supra, 91 Cal.App.5th at p. 329.)
“In 2022, the Legislature amended the statute again,” effective on January 1, 2023.
(Sherman, supra, 91 Cal.App.5th at p. 330.) The 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’ [citation]. 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.’ ” (Ibid., italics
added.)
The 2023 amendment thus expressly excludes a person having a conviction
requiring a sex offender registration from relief under section 1170.91, and makes the
exclusion retroactive. This exclusionary language has been interpreted to be retroactive
to cases pending on appeal. (Sherman, supra, 91 Cal.App.5th at pp. 330–331.)
As amended, there is a three-step process for a prisoner who seeks resentencing
under section 1170.91. First, the prisoner files a petition for resentencing to allege he or
she “may be suffering” from military service-related trauma. (§ 1170.91, subd. (b)(1).)
Second, the trial court must hold a hearing to determine whether the petitioner “satisfies
the criteria,” meaning the person suffers trauma “as a result of the person’s military
16.
service” and the other statutory provisions. (Id. at subds. (b)(1), (b)(3), (c).) Third, “[i]f
the person satisfies the criteria, the court may, in the interest of justice,” resentence the
petitioner. (Id. at subd. (b)(3).)
II. The Trial Court’s Denial of Defendant’s Petition
When defendant filed his petition in pro. per., the trial court complied with section
1170.91 in addressing his allegations. The matter was assigned to Judge Burns, who
presided over defendant’s jury trial in 2014. (§ 1170.91, subd. (b)(2).) The court
appointed counsel for defendant, provided time for briefing from the parties and a report
on defendant’s medical and military records, and conducted hearings as to whether
defendant met the statutory criteria. (Id. at subd. (b)(3).)
In his letter brief, defendant asserts he was eligible for resentencing under
section 1170.91 because his records show his conditions of PTSD, Dissociative Disorder
(NOS) and “Moderate Sleep Apnea,” and his commission of the offenses in this case,
were “service connected.” Defendant further argues the trial court could not rely on the
nature of his convictions to deny his petition, he presumed his prison records were
already available to the court, and the court failed to consider his positive performance in
prison.
Based on the statutory provisions that were applicable at the time of the hearings
in 2022, the trial court correctly found that defendant was ineligible for resentencing on
the indeterminate sentences imposed for counts 1 and 2, and that he made a prima facie
case for resentencing on the counts for which he received determinate terms. (See People
v. Estrada (2020) 58 Cal.App.5th 839, 842–843.) Thereafter, the court conducted an
evidentiary hearing where it reviewed defendant’s medical and military records, and
concluded he was neither eligible nor suitable for resentencing on the determinate
sentences imposed for his convictions under section 1170.91.
We find the trial court did not abuse its discretion in denying defendant’s petition.
The court acknowledged the information in defendant’s records, but also found
17.
defendant’s mental health complaints began long before he joined the military. The court
further stated that even if it found defendant was eligible for resentencing, the nature of
defendant’s repetitive and callous crimes committed against his children, over a long
period of time, overwhelmed any mitigating factors so that he was not suitable for
resentencing. The court noted that defendant’s callous behavior began shortly after he
married K., which was before he joined the military, and he continued to engage in this
behavior up to the time of his arrest in this case.
“[T]here is nothing in the reports provided that suggest how that mental
health issue would be related to his conduct in any form or manner in the
crimes that were committed in this case. There is nothing about forgetting
names or having a difficulty adapting to stress or difficulty adapting to [his]
work schedule, those sort of things that have any relationship to sexually
assaulting children or a spouse, or physically abusing children or a spouse.
And there is nothing related in the reports provided to the Court that would
suggest some sort of causal connection that would diminish [defendant’s]
culpability for the crimes that he committed based upon those factors.”
(Italics added.)
The court did not abuse its discretion when it found defendant was not suitable for
resentencing on the determinate terms based upon the version of section 1170.91 that
existed at the time of the hearing on his petition.
III. Application of the Amended Statute
In his letter brief, defendant asserts that since the trial court conducted the hearing
on his petition in 2022, prior to the effective date of the amendment to section 1170.91
that became effective on January 1, 2023, it improperly applied the “categorical
disqualification for eligibility” of certain offenses to his petition.
As explained above, the trial court applied the version of section 1170.91 that
existed at the time of the hearings on defendant’s petition in 2022. It did not find that
defendant was categorically ineligible for resentencing because he was ordered to register
as a sex offender. Instead, the court found that defendant was ineligible for resentencing
on counts 1 and 2 because he was sentenced to indeterminate terms on those convictions,
18.
consistent with the then-applicable version of section 1170.91. (See People v. Estrada,
supra, 58 Cal.App.5th at pp. 842–843.) It then declined to exercise its discretion as to the
determinate terms, finding he was neither eligible nor suitable for resentencing.
Also as explained above, however, the amendment to section 1170.91, effective
January 1, 2023, eliminated the exclusion for indeterminate sentences and, at the same
time, “restricted eligibility” by adding “a carve-out provision stating that ‘[t]his section
does not apply to a person convicted of … an offense requiring registration pursuant to
subdivision (c) of Section 290.’ (§ 1170.91, subd. (c).)” (Sherman, supra,
91 Cal.App.5th at p. 330.) This provision has been held retroactive to cases such as the
instant one, that was pending on appeal at the time the amendment became effective.
(Ibid.)
Defendant was convicted of seven offenses, including count 1, oral copulation
with a child 10 years of age or younger (§ 288.7, subd. (b)); count 2, aggravated sexual
assault of a child under age 14 by a person more than seven years older than the victim
(§ 269, subd. (a)(4)); and counts 4 and 6, lewd and lascivious acts on a child under age 14
by use of force, violence, duress, menace, and/or threat of great bodily harm (§ 288,
subd. (b)(1)).)
Section 290, subdivision (c)(1), states that every person convicted of certain
offenses, including violations of section 288.7, section 269, and section 288, “shall”
register as a sex offender. At defendant’s sentencing hearing, the court stated he was
ordered to register as a sex offender pursuant to section 290 upon his release from
custody. As a result, defendant is categorically ineligible for resentencing.
As a separate matter, the current version of section 1170.91, subdivision (c) states
that a defendant is also categorically ineligible for resentencing if “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….” (§ 1170.91, subd. (c), italics
added.) This phrase refers to “super-strike offenses” defined in section 667, subdivision
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(e)(2)(C)(iv). (Sherman, supra, 91 Cal.App.5th at p. 328.) An offense included in that
list is “[a] lewd or lascivious act involving a child under 14 years of age, in violation of
Section 288.” (§ 667, subd. (e)(2)(C)(iv)(III).) Defendant was convicted in counts 4 and
6 of violating section 288, subdivision (b)(1), committing lewd and lascivious acts on a
child under age 14 by use of force, violence, duress, menace, and/or threat of great bodily
harm. There is thus a second reason why defendant is categorically ineligible for
resentencing.
Defendant argues his case is similar to the facts addressed in People v. Coleman
(2021) 65 Cal.App.5th 817, where the matter was remanded for the trial court to
reconsider a section 1170.91 petition for resentencing. However, Coleman addressed the
version of section 1170.91 that was applicable in 2019 and 2021. As we have explained,
however, defendant is now categorically ineligible for resentencing as a result of the
amendment to section 1170.91, subdivision (c), which is retroactive to cases pending on
appeal.
IV. Defendant’s Additional Issues
Finally, defendant’s letter brief raises numerous issues regarding his jury trial and
sentencing hearing in 2014.
Defendant claims his trial attorney was prejudicially ineffective because prior to
his jury trial, defendant allegedly informed counsel his alleged mental disabilities, his
“memory loss” meant that he could not remember if he actually committed the charged
offenses, counsel never investigated these issues or tried to negotiate a plea agreement,
and defendant made several pretrial motions pursuant to People v. Marsden (1970)
2 Cal.3d 118 because of these alleged conflicts.
Defendant asserts the transcripts of his pretrial Marsden hearings show that his
trial counsel failed to communicate information about his alleged memory disorder
during plea negotiations to explain why defendant was unable to plead “guilty,” and that
he would have been willing to plead “no contest,” but counsel failed to accommodate his
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limitations. Defendant further argues he wanted his counsel to raise these issues before
the jury. Defendant asserts the court should have been aware of the discussions at his
pretrial Marsden hearings and considered these matters when he ruled on his section
1170.91 petition. Defendant concludes that as a result of these errors, this court must
vacate the entirety of the judgment against him and allow him to renegotiate an
agreement for a “no contest” plea to the charges filed against him.
In addition, defendant asserts certain witnesses who testified at his jury trial were
not credible because they were impeached, and the trial court improperly relied on such
evidence when it denied his petition for resentencing.
Defendant challenges the court’s original sentencing decisions in 2014 and asserts
certain terms either should have been imposed concurrently or stayed pursuant to
section 654, because he lacked any capacity for reflection when he committed the
charged offenses. Defendant further argues the court’s original sentencing decisions
were improper because it relied on the probation report’s conclusion that he did not show
remorse for his crimes, but defendant was unable to show remorse because he lacked
“knowledge” as to whether he actually committed the crimes because of his memory
problems.
We decline to address these complaints because defendant’s contentions about the
court’s pretrial rulings, his jury trial, the credibility of witnesses, and the court’s
sentencing decisions in 2014 are not cognizable in the instant appeal since the validity of
defendant’s long-final judgment was not before the trial court. (See, e.g., People v.
Stewart (2021) 66 Cal.App.5th 416, 424, 427; § 1170.91, subd. (b)(8) [“This subdivision
does not diminish or abrogate the finality of judgments in any case not falling within the
purview of this subdivision”].) In addition, any claims of ineffective assistance allegedly
based on counsel’s conduct during pretrial proceedings, defendant’s jury trial, and his
sentencing hearing are more appropriately made in a habeas corpus proceeding. (People
v. Wilson (1992) 3 Cal.4th 926, 926.)
21.
After independent review of the record, we find that no reasonably arguable
factual or legal issues exist.6
DISPOSITION
The court’s order of September 15, 2022, denying defendant’s section 1170.91
petition, is affirmed.
6 In his letter brief, defendant seeks to “preserve any and all issues under appeal
for review in federal court” based on his alleged disabilities. We note defendant’s
statement.
22.