People v. King

• Decision Date: 29 July 2020
• Docket Number: D076258
• Citation: 266 Cal.Rptr.3d 571,52 Cal.App.5th 783
• Parties: The PEOPLE, Plaintiff and Respondent, v. Simon KING, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

52 Cal.App.5th 783

266 Cal.Rptr.3d 571

The PEOPLE, Plaintiff and Respondent,

v.Simon KING, Defendant and Appellant.

D076258

Court of Appeal, Fourth District, Division 1, California.

Filed July 29, 2020

Sheila O'Connor, under appointment by the Court of Appeal, Encintas, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Robin Urbanski, Deputy Attorneys General, for Plaintiff and Respondent.

IRION, J.

Simon King appeals from an order denying his petition for recall of sentence pursuant to Penal Code section 1170.91, subdivision (b),¹ which provides for resentencing of military members or veterans suffering from certain mental health and substance abuse problems as a result of military service if they were sentenced to a determinate term prior to January 1, 2015, and the sentencing court did not consider the mental health and substance abuse problems as factors in mitigation. King contends that the trial court erred in summarily denying his petition without holding a hearing, which he contends was the procedure required by statute. Specifically, section 1170.91, subdivision (b)(3) provides, "Upon receiving a petition under this subdivision, the court shall determine, at a public hearing held after not less than 15 days' notice to the prosecution, the defense, and any victim of the offense, whether the person satisfies the criteria in this subdivision" for recall of sentence and resentencing.

Assuming without deciding that a hearing was required in the circumstance of King's petition, we deny relief because the failure to hold a hearing was not prejudicial. King is plainly ineligible for relief under section 1170.91, subdivision (b). King agreed to a stipulated sentence for a term of years in 2009, and the trial court accordingly would have no discretion on resentencing to depart from the stipulated sentence regardless of King's mental health and substance abuse problems.

I.FACTUAL AND PROCEDURAL BACKGROUND

In 2009, an amended information alleged that King committed 30 counts of physical and sexual abuse against two stepchildren. Specifically, the amended information alleged seven counts of lewd acts upon a child under the age of 14 (§ 288, subd. (a)); three counts of sexual intercourse/sodomy with a child 10 years of age or younger (§ 288.7, subd. (a)); two counts of oral copulation/sexual penetration with a child 10 years of age or younger (§ 288.7, subd. (b)); one count of aggravated sexual assault of a child (§ 269, subd. (a)); one count of felony child abuse (§ 273a, subd. (a)); one count of forcible rape (§ 261, subd. (a)(2)); one count of assault with a deadly weapon (§ 245, subd. (a)(1)); two counts of employment of a minor to perform prohibited acts (§ 311.4, subd. (c)); one count of sending harmful matter with the intent of seducing a minor (§ 288.2, subd. (a)); six counts of possessing matter depicting children engaged in sexual conduct (§ 311.11, subd. (a)); and five counts of forcible lewd acts upon a child (§ 288, subd. (b)(1)). For certain of the counts, it was alleged that King committed the offenses against more than one victim. (§ 667.61, subds. (b), (c), (e).)

King pled guilty to five counts of forcible lewd acts upon a child (§ 288, subd. (b)(1)), and the People dismissed the remainder of the counts. As part of the plea agreement, the parties agreed to a stipulated sentence of 30 years in prison. The 30-year sentence was comprised of six-year terms for each of the five counts. On January 25, 2010, the trial court sentenced King to a prison term of 30 years in accordance with the stipulated sentence. At the hearing, the trial court stated, "It is a stipulated plea. I don't need to make any findings."

On June 10, 2019, representing himself in pro per, King filed a petition to recall his sentence pursuant to section 1170.91, subdivision (b). In support, King submitted a declaration and attached evidence to establish that he had served in the military. According to King, "[d]uring the course of [his] service, he experienced a violent attack that resulted in traumatic brain injury, ... became dependent on substance abuse" and "experienced service related trauma that was later diagnosed as ‘PTSD.’ "

On June 28, 2019, the trial court summarily denied the petition without holding a hearing. King filed a notice of appeal from the order denying the petition.

II.DISCUSSION

When the Legislature first enacted section 1170.91, effective January 1, 2015, it contained a single paragraph creating a requirement that a sentencing court consider mental health and substance abuse problems stemming from military service as a mitigating factor when imposing a determinate term under section 1170, subdivision (b). (Stats. 2014, ch. 163, § 2.) Specifically, the statute provided, "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." (Former § 1170.91 [now identified as § 1170.91, subd. (a) ].) As relevant here, section 1170.91 required the trial court to consider mental health and substance abuse problems as factors in mitigation only "when imposing a term under subdivision (b) of Section 1170." (Former § 1170.91 [now identified as § 1170.91, subd. (a) ].) That provision describes the trial court's exercise of sentencing discretion to choose an upper, middle or lower determinate term based on factors in mitigation and aggravation.² (§ 1170, subd. (b).)

In 2018, the Legislature amended section 1170.91 to provide relief for former or current members of the military who were sentenced before January 1, 2015, and did not have their mental health and substance abuse problems considered as factors in mitigation during sentencing. (Stats. 2018, ch. 523, § 1.) Section 1170.91, subdivision (b)(1) provides, in relevant part:

"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 of conviction in his or her case, to request resentencing pursuant to subdivision (a) if 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." ( § 1170.91, subd. (b)(1).)

With respect to the procedure that a court should follow in considering a petition for relief under section 1170.91, subdivision (b)(1), the statute states, "Upon receiving a petition under this subdivision, the court shall determine, at a public hearing held after not less than 15 days' notice to the prosecution, the defense, and any victim of the offense, whether the person satisfies the criteria in this subdivision. At that hearing, the prosecution shall have an opportunity to be heard on the petitioner's eligibility and suitability for resentencing. If the person satisfies the criteria, the court may, in its discretion, resentence the person following a resentencing hearing." ( § 1170.91, subd. (b)(3).)

King was sentenced prior to January 1, 2015, and he represents that he suffers from mental health and substance abuse problems stemming from military service.

Accordingly, King filed a petition, relying on section 1170.91, subdivision (b)(1), to obtain a recall of his sentence and resentencing so that the court could consider his mental health and substance abuse problems as factors in mitigation when imposing sentence. As we have explained, the trial court did not hold a public hearing pursuant to section 1170.91, subdivision (b)(3) to determine whether King satisfied the applicable criteria. Instead, it summarily denied the petition in a written order and did not provide any basis for its denial.

King seeks reversal on the ground that the trial court violated the procedural requirements of section 1170.91, subdivision (b)(3) when it failed to hold a hearing before denying the petition. (See People v. Bonilla-Bray (2020) 49 Cal.App.5th 234, 262 Cal.Rptr.3d 754 [trial court erred in summarily denying petition to recall sentence under § 1170.91 without a hearing].) The People contend that a hearing was not required under the unique circumstances of King's case, as he is disqualified from any relief by virtue of having entered into a stipulated sentence for a 30-year prison term in 2009.

The People also contend that in the event the trial court did err in failing to hold a hearing, the error was not prejudicial.

We need not, and do not, decide whether the trial court was required to hold a hearing on King's petition rather than entering a summary denial. As we will explain, even if we assume that the trial court erred by failing to hold a hearing, King is not entitled to relief on his appeal because the error, if any, was not prejudicial.

We must first determine the standard that applies in determining whether the trial court's error, if any, was prejudicial. The California Constitution states that "[n]o judgment shall be set aside ... in any cause, ... for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the...