People v. Estrada ( 2020 )

Filed 12/16/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent,
A160032
v.
PAUL ESTRADA, (Solano County
Super. Ct. No. FC33461)
Defendant and Appellant.
Paul Estrada appeals from a post-judgment order denying his petition
for resentencing under Penal Code section 1170.91.1 We agree with the trial
court that Estrada is not eligible for resentencing and affirm.
BACKGROUND
A.
Since 2015, California law has required sentencing courts to consider,
as mitigating factors weighing in favor of a low-term determinate sentence,
any trauma, substance abuse, and mental health problems caused by a
defendant’s service in the United States military. (§ 1170.91, subd. (a);
People v. Bonilla-Bray (2020) 49 Cal.App.5th 234, 236, 238.) In 2018, the
Legislature amended section 1170.91 to allow those sentenced for a felony
conviction before January 1, 2015 to petition for a resentencing hearing at
1 Undesignated statutory references are to the Penal Code.
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which the court could consider mitigating factors related to military service.
(§ 1170.91, subds. (b)(1), (3); People v. Bonilla-Bray, supra, at pp. 236, 238.)
B.
Estrada killed his estranged wife. In 1993, he pled no contest to second
degree murder (§ 187, subd. (a)) and admitted a deadly weapon use
enhancement allegation (§ 12022, subd. (b)) for his use of a knife. He was
sentenced to an aggregate prison term of 16 years to life. Estrada’s sentence
consists of an indeterminate 15-years-to-life term for the murder (§ 190, subd.
(a)), plus a consecutive one-year term for the weapon use enhancement. On
direct appeal, this court affirmed the judgment.
In 2019, Estrada filed a petition in propria persona seeking
resentencing under section 1170.91, subdivision (b). In support, he attached
evidence of his military service and substance abuse (which allegedly began
during his military service). After appointing counsel to represent Estrada,
the trial court ruled he was statutorily ineligible for resentencing under
section 1170.91 because he was serving an indeterminate term.
DISCUSSION
A.
Estrada contends the trial court misconstrued section 1170.91. After
reviewing the question independently (People v. Bonilla-Bray, supra, 49
Cal.App.5th at p. 237), we disagree.
1.
Section 1170.91, subdivision (a), provides: “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
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circumstance as a factor in mitigation when imposing a term under
subdivision (b) of Section 1170.” (Italics added.)
Subdivision (b)(1) of section 1170.91 provides: “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. This subdivision shall apply
retroactively, whether or not the case was final as of January 1, 2015.”
(Italics added.)
2.
Estrada incorrectly asserts section 1170.91, subdivision (b)(1), does not
limit resentencing eligibility to those serving determinate sentences pursuant
to section 1170, subdivision (b).
The plain language of the statute is clear. A petitioner meeting section
1170.91 subdivision (b)(1)’s requirements may obtain “resentencing pursuant
to subdivision (a).” (§ 1170.91, subds. (b)(1), (3).) In turn, subdivision (a) of
the statute provides that the trial court shall consider mitigating factors
related to the defendant’s military service “when imposing a term under
subdivision (b) of Section 1170.” (§ 1170.91, subd. (a)), italics added.) In
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other words, section 1170.91 only applies to determinate terms imposed
under section 1170, subdivision (b). (See People v. King (2020) 52
Cal.App.5th 783, 786 [section 1170.91, subdivision (b)(1), “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”], italics added.)
Section 1170, subdivision (b), describes the sentencing court’s discretion
to choose an aggravated, middle, or lower determinate term based on its
consideration of mitigating and aggravating factors. (§ 1170, subd. (b); People
v. King, supra, 52 Cal.App.5th at pp. 788, 791.) The statute governing
punishment for murder provides that, with exceptions not applicable here,
“every person guilty of murder in the second degree shall be punished by
imprisonment in the state prison for a term of 15 years to life.” (§ 190, subd.
(a), italics added.) At the time Estrada was sentenced, the statute provided
the same mandatory sentence. (Stats. 1987, ch. 1006, § 1.) Sentences of life
imprisonment and sentences of a number of years to life, such as Estrada’s
term for second degree murder (§ 190, subd. (a)), are not subject to the
determinate sentencing law (§ 1170 et seq.). (§ 1168, subd. (b); People v.
Sasser (2015) 61 Cal.4th 1, 8; People v. Felix (2000) 22 Cal.4th 651, 659.) Had
the Legislature intended for section 1170.91 to apply to indeterminate terms
imposed under section 1168, subdivision (b), it would not have specifically
limited the statute’s application to terms imposed under section 1170,
subdivision (b).
The trial court did not err in construing section 1170.91.
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B.
We also reject Estrada’s alternative argument—that he is statutorily
eligible for recall and resentencing under section 1170.91, subdivision (b)(1),
because he requested resentencing to a determinate term for voluntary
manslaughter, a lesser offense of murder.
Voluntary manslaughter is punishable by a determinate term. (§§ 193,
subd. (a) [specifying a sentencing triad of three, six, or 11 years], 1170, subd.
(b).) However, Estrada pled no contest to second degree murder, not
voluntary manslaughter. Estrada does not cite authority to support his claim
that the trial court is empowered, on consideration of a section 1170.91
resentencing petition, to modify a final judgment so that he is convicted of a
lesser crime. Had the Legislature intended this result, it would have said so.
It did not. (§ 1170.91.)
Finally, Estrada maintains that his one-year term on the enhancement
is subject to resentencing. The one-year enhancement term may be
determinate, but enhancement terms are imposed pursuant to section 1170.1,
subdivision (d) and not section 1170, subdivision (b). Section 1170.91
provides for mitigation consideration of military service only with respect to
determinate sentences imposed pursuant to section 1170, subdivision (b). (§
1170.91, subd. (a).) Section 1170.91 does not apply to any component of
Estrada’s sentence.
DISPOSITION
The order denying Estrada’s petition for resentencing is affirmed.
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_________________________
Burns, J.
WE CONCUR:
_________________________
Needham, Acting P. J.
_________________________
Reardon, J.*
(A160032)
* Judge of the Superior Court of Alameda County, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
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Solano County Superior Court
Trial Judge: The Honorable Carlos Gutierrez
Audrey R. Chavez, under appointment by the Court of Appeal, for Defendant
and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General,
Eric D. Share, Supervising Deputy Attorney General, Roni Dina Pomerantz,
Deputy Attorney General for Plaintiff and Respondent.
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