People v. Brooks

• Citation: 273 Cal.Rptr.3d 96,58 Cal.App.5th 1099
• Decision Date: 22 December 2020
• Docket Number: A158988
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Jason BROOKS, Defendant and Appellant.

58 Cal.App.5th 1099

273 Cal.Rptr.3d 96

The PEOPLE, Plaintiff and Respondent,

v.Jason BROOKS, Defendant and Appellant.

A158988

Court of Appeal, First District, Division 4, California.

Filed December 22, 2020

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.

STREETER, J.

Jason Brooks appeals the denial of a petition seeking recall of his sentence pursuant to Penal Code ¹ 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 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 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, 257 Cal.Rptr.3d 79 ; People v. Hurlic (2018) 25 Cal.App.5th 50, 57–58, 235 Cal.Rptr.3d 255 ; cf. People v. Stamps (2020) 9 Cal.5th 685, 696, 264 Cal.Rptr.3d 769, 467 P.3d 168 ( 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, 266 Cal.Rptr.3d 571 ( King ); People v. Bonilla-Bray (2020) 49 Cal.App.5th 234, 238, 262 Cal.Rptr.3d 754 ).

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, 266 Cal.Rptr.3d 571 ; People v. Bonilla-Bray , supra , 49 Cal.App.5th at p. 238, 262 Cal.Rptr.3d 754.) 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.

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, 203 Cal.Rptr.3d 130, 371 P.3d 592.) 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, 209 Cal.Rptr.3d 584, 383 P.3d 648 ( 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, 209 Cal.Rptr.3d 584, 383 P.3d 648.)

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, 209 Cal.Rptr.3d 584, 383 P.3d 648. 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 the complaint dismissed pursuant to the plea agreement. ( Harris, supra , at p. 987, 209 Cal.Rptr.3d 584, 383 P.3d 648.) 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, 209 Cal.Rptr.3d 584, 383 P.3d 648.)

Next, Brooks cites Stamps , supra , 9 Cal.5th 685, 264 Cal.Rptr.3d 769, 467 P.3d 168, 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, ...