People v. Williams CA2/1 ( 2021 )

Filed 5/20/21 P. v. Williams CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B305218
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA318827)
v.
SMITTY WILLIAMS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Norm Shapiro, Judge. Reversed and remanded
with directions.
Andrea S. Bitar, under appointment by the Court of
Appeal, for Defendant and Appellant.
Matthew Rodriquez, Acting Attorney General, Lance E.
Winters, Chief Assistant Attorney General, Susan Sullivan
Pithey, Assistant Attorney General, Michael R. Johnsen and
Charles S. Lee, Deputy Attorneys General, for Plaintiff and
Respondent.
_______________________________
Smitty Williams appeals from an order denying his petition
to recall his sentence under Penal Code section 1170.91.1
Because the record indicates the trial court (and Williams’s
appointed counsel) considered the matter under a different and
inapplicable statute, we reverse the order and remand the matter
for a hearing under section 1170.91, subdivision (b). The
Attorney General concedes this is the appropriate disposition.
BACKGROUND
In 2008, a jury found Williams guilty of forcible rape (§ 261,
subd. (a)(2)), unlawful sexual penetration (§ 289, subd. (a)(1)),
and two counts of forcible oral copulation (former § 288, subd.
(c)(2)). The jury also found true the special allegation that
Williams used a knife during commission of the offenses, within
the meaning of section 12022.3, subdivision (a). Williams was a
taxi driver, and the victim was his legally blind passenger.
(People v. Williams (Apr. 9, 2010, B212342) [nonpub. opn.].)2
In October 2008, the trial court sentenced Williams to an
indeterminate term of 15 years to life for the rape. The court
further sentenced Williams to a consecutive and total
determinate term of 54 years for the other three offenses: the
upper term of eight years for each of the three offenses, plus the
upper term of 10 years for the deadly weapon enhancement on
each of the three offenses.
Effective January 1, 2019, the Legislature amended section
1170.91 to add subdivision (b), which provides in pertinent part:
1 Undesignated statutory references are to the Penal Code.
2The cited opinion is from Williams’s direct appeal of his
convictions, in which this court affirmed the judgment.
2
“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 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)[3] 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.” (§ 1170.91, subd. (b)(1);
Stats. 2018, ch. 523, § 1.)
3 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 circumstance as
a factor in mitigation when imposing a term under subdivision (b)
of Section 1170. This consideration does not preclude the court
from considering similar trauma, injury, substance abuse, or
mental health problems due to other causes, as evidence or
factors in mitigation.” This was the original language of section
1170.91 when it was enacted in 2014 and became effective
January 1, 2015. (Stats. 2014, ch. 163, § 2.)
3
On January 23, 2019, Williams, as a self-represented
litigant, filed a petition for recall of his sentence under section
1170.91. He attached to his petition documents indicating (1) he
served in the United States Navy for three years, from 1974 to
1977, and he was honorably discharged; (2) he suffers from
posttraumatic stress disorder; and (3) the California Department
of Corrections and Rehabilitation has prescribed him medication
for his posttraumatic stress disorder, as of November 2018. In
his petition, Williams stated his posttraumatic stress disorder
stems from his service in the military, specifically “picking up
deceased soldiers to be shipped home in the United States
through horrific conditions while at sea when Navy Helicopter[s]
were being shot at continuously.” Williams requested counsel,
and the trial court appointed counsel to represent Williams in
connection with this petition.
On September 23, 2019, Williams’s appointed counsel filed
a brief addressing the constitutionality of section 1170.95, a
statute not applicable here, which permits a person convicted of
felony murder or murder under a natural and probable
consequences theory to petition the court to have the murder
conviction vacated and to be resentenced, if the person could not
be convicted of murder today in light of 2018 amendments to
sections 188 and 189. (Stats. 2018, ch. 1015, § 1(f), p. 6674.) As
explained above, this case does not involve a murder.
At a hearing on October 2, 2019, at which Williams’s
appointed counsel and a deputy district attorney appeared, the
trial court continued the matter, stating for the record, “[t]he
motion is pursuant to 1170.95 of the Penal Code.” As set forth
above, Williams filed his petition under section 1170.91, not
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1170.95. Neither Williams’s counsel nor the deputy district
attorney corrected the trial court.4
At the continued hearing on October 31, 2019, at which
Williams’s counsel and the deputy district attorney appeared, the
trial court stated on the record, “I believe this is a motion
pursuant to [section] 1170.” The court again continued the
matter. Also on October 31, 2019, the court issued a minute
order, stating in pertinent part: “The court grants defendant’s
motion for a resentencing hearing pursuant to Penal Code section
1170.95. Further proceedings re: resentencing hearing setting is
set on 1-13-20.” Neither the court nor counsel for the parties
acknowledged that Williams brought his petition under section
1170.91.
At the hearing on January 13, 2020, at which Williams’s
counsel and the deputy district attorney appeared, the trial court
made the following comments on the record: “I believe this is a
motion pursuant to [section] 1170. [¶] [Defense counsel], I have
read and considered all the paperwork you have submitted, and
in the court’s opinion I don’t feel this motion should be granted
due to the circumstances; therefore, I am denying your motion.”
The court did not elaborate on the “circumstances” it considered.
Counsel for the parties did not address the court on the record, as
reflected in the reporter’s transcript of the hearing. The minute
order from this hearing states, in pertinent part: “Both sides
argue on the re-sentencing pursuant to Penal Code section
1170.95. [¶] . . . [¶] The court denies the re-sentencing pursuant
to Penal Code section 1170.95.”
4 Williams was not present at any of the hearings held on
his petition under section 1170.91.
5
Williams appealed from the order denying the petition that
he brought under section 1170.91.
DISCUSSION
Williams contends the trial court violated his statutory and
due process rights when it denied his petition. Because we
reverse the order based on our conclusion that the record
indicates the trial court did not properly consider Williams’s
petition in light of section 1170.91, as explained below, we need
not address Williams’s due process claim.
When a trial court receives a petition brought under section
1170.91, “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 [as quoted above]. 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).)
Here, there is no indication in the record that the trial
court considered whether Williams satisfied the criteria for
eligibility for resentencing under section 1170.91. Instead, the
record indicates the trial court (and Williams’s counsel)
considered the matter under section 1170.95, a statute not
applicable to the circumstances of Williams’s case.
Based on the record before us, the error is not harmless.
(See People v. King (2020) 52 Cal.App.5th 783, 790 [state law
harmless error analysis under People v. Watson (1956) 46 Cal.2d
818 applies to review of order denying petition for recall of
sentence].) Williams’s petition does not demonstrate he is
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ineligible for resentencing under section 1170.91: he was
sentenced before 2015, and he presented evidence indicating he
served in the military and he suffers from posttraumatic stress
disorder. In the respondent’s brief, the Attorney General
concedes that, based on the information Williams presented in
his petition, the matter must be remanded for the trial court to
consider whether Williams satisfies all the criteria for eligibility
for resentencing under section 1170.91 on the determinate
portion of his sentence5 (e.g., whether Williams’s posttraumatic
stress disorder arose from his military service, as he states in his
petition). Accordingly, we reverse the trial court’s order denying
Williams’s petition, and we remand the matter for a new hearing
that complies with section 1170.91, subdivision (b).
DISPOSITION
The order is reversed, and the matter is remanded for a
new hearing at which the trial court shall satisfy its statutory
obligations under section 1170.91, subdivision (b).
NOT TO BE PUBLISHED
CHANEY, J.
We concur:
ROTHSCHILD, P. J. BENDIX, J.
5 Section 1170.91 applies to a trial court’s imposition of a
determinate term under section 1170, subdivision (b). (§ 1170.91,
subd. (a).) Thus, if the trial court were to resentence Williams
under section 1170.91—and we express no opinion on whether
that should occur—such a resentencing would not affect the
indeterminate term on the rape count in this case.
7