People v. Bibbs CA2/7 ( 2021 )

Filed 5/10/21 P. v. Bibbs CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B306566
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA022376-02)
v.
CARL E. BIBBS II,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Robert J. Perry, Judge. Affirmed.
David R. Greifinger, under appointment by the Court of
Appeal, for Defendant and Appellant.
No appearance by Plaintiff and Respondent.
___________
Carl E. Bibbs II, convicted of multiple serious felonies in
2006, appeals the superior court’s order denying his
postjudgment motion for recall of sentence and resentencing
pursuant to Penal Code section 1170.91, subdivision (b).1 No
arguable issues have been identified following review of the
record by Bibbs’s appointed appellate counsel. We also have
identified no arguable issues after our own independent review of
the record and analysis of the contentions presented by Bibbs in
his supplemental brief. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Bibbs’s Conviction and Sentence
Bibbs was convicted in 1996 following a jury trial of
three counts of aggravated kidnapping (§§ 209, subd. (b), 209.5,
subd. (a)), five counts of rape in concert (§ 264.1), four counts of
rape with a foreign object (§ 289, subd. (a)), two counts of
first degree robbery (§ 211), second degree robbery (§ 211),
carjacking (§ 215, subd. (a)), assault with a firearm (§ 245,
subd. (a)(2)), first degree burglary (§ 459) and grand theft of a
vehicle (§ 487h, subd. (a)). The jury also found true firearm
enhancements for 13 of the counts. The trial court sentenced
Bibbs to three consecutive indeterminate life terms with the
possibility of parole for the three aggravated kidnapping offenses
plus a consecutive aggregate determinate term of 87 years on the
remaining counts. (Sentences on several of the charges were
stayed pursuant to section 654.)2
1 Statutory references are to this code.
2 On May10, 2019, at the request of the California
Department of Corrections and Rehabilitation, the court ordered
preparation of an amended abstract of judgment to reflect the
2
On May 3, 2019 Bibbs, representing himself, filed a motion
in superior court for recall of sentence pursuant to
section 1170.91. Bibbs cited Assembly Bill No. 865 (2017-2018
Reg. Sess.), which, effective January 1, 2019, extended to all
individuals currently serving a sentence for a felony conviction
the potential benefits of section 1170.91, which has since 2015
required courts to consider mental health and substance abuse
problems stemming from military service as a mitigating factor
when imposing a determinate sentence under section 1170,
subdivision (b). Bibbs alleged he had served in the United States
Army and the Army National Guard and attached service records
indicating his periods of active and inactive duty. Bibbs
requested appointment of counsel.
Bibbs’s motion was assigned to the trial court that
originally sentenced Bibbs in 1996, as required by
section 1170.91, subdivision (b)(1). The court appointed counsel
for Bibbs; acknowledged that, as an honorably discharged
veteran, Bibbs was entitled to consideration under
section 1170.91; and scheduled a hearing on the motion. After
several continuances at the request of appointed counsel to
permit him to prepare, the court held a hearing on the motion on
November 21, 2019. Bibbs’s counsel submitted on the court file.
The court denied the motion, explaining, “I don’t think the
defendant is entitled to relief under 1170.91, and I do not award
him relief under that statute. I don’t think it was designed for
someone in his position.”
Bibbs filed a notice of appeal on January 21, 2020 that this
court deemed timely.
proper Penal Code sections with respect to Bibbs’s multiple rape
convictions.
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DISCUSSION
In accord with the procedures described in People v. Cole
(2020) 52 Cal.App.5th 1023, review granted October 14, 2020,
S264278, we appointed counsel to represent Bibbs on appeal.
After reviewing the record, appointed counsel filed a brief raising
no issues. Appointed counsel advised Bibbs on January 7, 2021
that he had 30 days to submit a brief or letter raising any
grounds of appeal, contentions or arguments he wanted the court
to consider. We provided a similar notice to Bibbs on January 11,
2021.
On February 11, 2021 we received a three-page typed
supplemental brief from Bibbs that argues prejudicial error
occurred during this trial—matters not cognizable in his appeal
from the order denying his motion for recall of sentence pursuant
to section 1170.91—and contends his documented substance
abuse while in the military is a mitigating factor that entitles
him to reconsideration of the sentence imposed in 1996. Bibbs’s
argument for resentencing lacks merit.
Section 1170.91, subdivision (a), authorizes the court, when
sentencing a felony defendant who is or was a member of the
United States military, to consider as a factor in mitigation in
imposing a determinate term sentence that the defendant “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.”
As amended by Assembly Bill No. 855, section 1170.91,
subdivision (b)(1), 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-
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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.”
Section 1170.91, subdivision (b)(3), which describes the
hearing procedure for a veteran petitioning for recall of sentence,
however, expressly provides, once the court determines the
petitioner has satisfied the criteria in subdivision (b)(1), “the
court may, in its discretion, resentence the person following a
resentencing hearing.” That is, unlike some other ameliorative
resentencing procedures recently enacted by the Legislature that
mandate relief if the petitioner satisfies the relevant criteria,
relief under section 1170.91 is within the discretion of the court.
The superior court in this case, familiar with the evidence at
trial, concluded Bibbs should not be granted relief. Bibbs’s
supplemental brief, which simply refers to the fact of his
substance abuse, fails to provide any basis upon which we could
conclude that decision constituted an abuse of discretion.
Because no cognizable legal issues have been raised by
Bibbs’s appellate counsel or by Bibbs or identified in our
independent review of the record, the order denying the
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postjudgment motions is affirmed. (See People v. Cole, supra,
52 Cal.App.5th at pp. 1039-1040, review granted; see also People
v. Serrano (2012) 211 Cal.App.4th 496, 503; see generally People
v. Kelly (2006) 40 Cal.4th 106, 118-119; People v. Wende (1979)
25 Cal.3d 436, 441-442.)
DISPOSITION
The postjudgment order is affirmed.
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.
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