Opinion
E074578
05-17-2021
THE PEOPLE, Plaintiff and Respondent, v. GREGORE JOHN LAVOIE, Defendant and Appellant.
Stephanie M. Adraktas, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIF133352) OPINION APPEAL from the Superior Court of Riverside County. David A. Gunn, Judge. Affirmed. Stephanie M. Adraktas, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Defendant and appellant Gregore John LaVoie appeals the denial of a petition seeking recall of his sentence pursuant to Penal Code section 1170.91. A judge found that he set forth a prima facie case and referred the matter to a second judge for a resentencing hearing. The second judge concluded that section 1170.91 did not apply to plea agreements with a stipulated prison term and denied defendant's petition. Defendant asks that we reverse the second judge's denial and remand the matter for an evidentiary hearing. We affirm.
All further statutory references will be to the Penal Code unless otherwise noted.
PROCEDURAL BACKGROUND
On September 30, 2010, the Riverside County District Attorney filed an amended information charging defendant with four counts of assault with a deadly weapon and by means of force likely to produce great bodily injury (§ 245, subd. (a)(1), counts 1, 2, 5, & 6), attempted robbery (§§ 664, 211, count 3), three counts of active participation in a criminal street gang (§ 186.22, subd. (a), counts 4, 8, & 15), making criminal threats (§ 422, count 7), dissuading a witness (§ 136.1, subd. (a)(1), count 13), and attempting to bribe a witness (§ 138, subd. (a), count 14). As to counts 1 and 5, it was alleged that defendant personally inflicted great bodily injury. (Former §§ 12022.7. subd. (a) & 1192.7, subd. (c)(8).) It was alleged that he committed the offenses in counts 8 and 13 through 15 while released from custody on another offense. (Former § 12022.1.) It was also alleged that he committed all the offenses, except counts 4, 8, and 15, for the benefit of, or at the direction of, a criminal street gang. (§ 186.22, subd. (b).)
Defendant entered a plea agreement and pled guilty to counts 2, 5, and 13. As to count 5, he admitted the street gang enhancement (§ 186.22, subd. (b)) and the great bodily injury enhancement (former § 12022.7). As to count 13, he admitted that he committed the offense while being released from custody on another offense. (Former § 12022.1.) In exchange, the prosecution agreed to a total term of 18 years in state prison and the dismissal of the remaining counts and allegations. On November 18, 2010, the court sentenced defendant pursuant to the plea agreement to four years on count 5 (the principal count), plus 10 years on the gang enhancement, one year on count 2, and one year on count 13, plus two years on the custody enhancement, for a total of 18 years in prison.
We note that the plea agreement reflects in handwriting that defendant was going to plead to two strikes. However, it appears he did not do so since the sentencing minute order and the abstract of judgment do not refer to any prior strikes. The reporter's transcript of the plea hearing is not included in the record on appeal.
On February 15, 2019, defendant filed a petition for recall of sentence pursuant to section 1170.91. He alleged that he was in the United States Army from January 2005 to October 2006, and served as an infantryman in Iraq from November 2005 to April 2006. He alleged that the Department of Veterans Affairs diagnosed him with posttraumatic stress disorder (PTSD) due to his combat experience in Iraq. He further alleged that there was no mention of his military service at the sentencing hearing and argued that the matter should be remanded for a resentencing hearing that would take his service and resulting mental health issues into account. Attached to his petition was a copy of his certificate of release or discharge from active duty, which indicated he served in the United States Army for one year four months and was discharged due to misconduct but was honorably discharged. Defendant also attached a document entitled "Progress Notes" indicating that he was "diagnosed with PTSD related to his combat experience in Iraq."
The prosecution filed an opposition alleging that defendant was facing a sentence of 26 years two months, plus seven years to life. He entered a negotiated plea for a sentence of 18 years in state prison, and all parties were aware of his prior military service.
On June 13, 2019, the Honorable John D. Molloy (the court, or the first judge) held a hearing on the section 1170.91 petition. Attorney Mark McDonald testified that he represented defendant in the underlying proceedings and engaged in plea negotiations with three different prosecutors. McDonald testified that he discussed defendant's military service with all of them since defendant was "highly decorated" and he thought they should "give him a little credit" for what he had done for his country. McDonald also testified that he had a lot of conversations with defendant about his military service but did not ask him about his mental health or PTSD. McDonald testified that he did not share any information of defendant having PTSD with the prosecutors since he did not know defendant had a diagnosis.
The prosecutor called as a witness the deputy district attorney who handled the bulk of the plea negotiations. He testified that he recalled McDonald telling him about defendant's military service, saying that defendant had served in an elite unit and was highly decorated for valor. He testified that he considered such information in the plea negotiations since it was a large factor in defendant's background.
The court observed that the document entitled "Progress Notes," which stated that defendant was diagnosed with PTSD as a result of his military service, appeared to have been written by a social worker. Defense counsel argued that this evidence showed defendant had a diagnosis that was related to his service, and that it was "enough to cross the threshold of the bar to have a resentencing hearing." Counsel asserted that defendant would present more specific evidence regarding his diagnosis. The court noted that it did not have a declaration from anyone saying that PTSD was considered. The prosecutor argued that defendant's "military service and all of his effects [were] taken into consideration by the [district attorney] handling the plea," although it "may not specifically state the words PTSD."
The court asked defense counsel what he contemplated the end result would be if defendant got a resentencing hearing. Counsel responded that the judge "has an opportunity to deviate" from the current sentence of 18 years. The court asked how they reached the 18-year sentence, and the prosecutor said it was based on a negotiated disposition. Defense counsel said the sentence consisted of eight years on the substantive offense, plus 10 years on the gang enhancement, and "based on that, the way that they calculated that sentence, there is room to deviate based on the ranges." The prosecutor then reiterated the argument that defendant's military service and possible PTSD were considered. After a brief recess, the court granted defendant's petition, saying it was "satisfied that what was not discussed was an actual diagnosis" or "any ongoing mental health treatment." It noted there was a difference between someone serving their country and putting himself at risk and returning with PTSD. The court stated it was not ruling that defendant actually had mental health problems as a result of his military service, but that he had made a prima facie showing that he did. The court noted that the original sentencing judge was unavailable and said it would find another judge to conduct the hearing. The parties agreed.
Because Judge Molloy made comments indicating he thought defendant's original sentence was a "good disposition," he recused himself from the further resentencing hearing.
The parties appeared before the Honorable David A. Gunn (the second judge) on December 19, 2019. He noted the first judge determined that defendant made a prima facie showing that an ongoing mental health problem or treatment was not discussed at sentencing. The second judge expressed his concerns about overruling another judge, but said he did not think he was doing so since the first judge never ruled on whether or not section 1170.91 applied to negotiated pleas, despite "expressing many concerns" about whether it did or not. The second judge then found that the plain language of the statute supported his position that section 1170.91 did not apply to negotiated pleas. He quoted the statute, which states that a court shall consider PTSD as a mitigating factor when imposing a term under section 1170, subdivision (b). He then explained that pursuant to section 1170, subdivision (b), a court has discretion to impose the upper, middle, or lower term; however, he did not see how the statute could apply to a negotiated plea since "[t]here is no mitigation offered in a negotiated plea." Accordingly, the second judge denied the petition for resentencing, concluding that section 1170.91 does not apply to negotiated pleas. Defense counsel argued that the first judge made "an implied ruling" that the statute applied to negotiated pleas by "the fact that [he] had moved the process along." The second judge reiterated that he did not believe he was overruling the first judge since the first judge never ruled on whether or not the statute applied to negotiated pleas.
It is unclear what concerns the second judge was referring to. --------
DISCUSSION
The Second Judge Properly Concluded That Section 1170.91 Does Not Apply to
Negotiated Plea Agreements
Defendant contends that the first judge properly found he met the statutory criteria for a section 1170.91 resentencing hearing, and that the second judge improperly reversed the first judge's ruling. He further argues the second judge's denial of his petition should be reversed since section 1170.91 provides that the relief applies to cases resolved by plea agreements. We conclude that the second judge properly denied defendant's petition.
A. The Second Judge Did Not Overrule the Ruling Made by the First Judge
Defendant argues the second judge should have heard the evidence concerning his request for sentencing mitigation under section 1170.91; instead, it improperly reconsidered and reversed the first judge's order granting his petition for a further resentencing hearing. Defendant asserts that the superior court is a single court, and one member of that court cannot review the decisions of another since that "places the second judge in the role of a one-judge appellate court." (In re Alberto (2002) 102 Cal.App.4th 421, 427.) The People argue that the second judge did not reverse any ruling made by the first judge, and we agree.
As the second judge correctly observed, the first judge ruled that defendant made a prima facie case that he had some mental health problems as a result of his military service, and those problems were not discussed as a mitigating factor at sentencing. The second judge found that the first judge "never ruled on whether or not [section] 1170.91 should apply to negotiated pleas." Thus, when the second judge concluded that section 1170.91 does not apply to negotiated pleas and ordered defendant's petition to be denied, his ruling did not reverse any ruling made by the first judge.
B. Section 1170.91 Relief Is Not Available to a Sentence Imposed Pursuant to a Plea Agreement With a Stipulated Sentence
Defendant argues the second judge's order denying his petition for resentencing should be reversed since section 1170.91 expressly provides that it applies to cases resolved by guilty pleas. We see the dispositive issue in this appeal as whether the resentencing authority granted by section 1170.1, subdivision (b), which applies to sentences based on convictions suffered by "trial or plea" (§ 1170.91, subd. (b)(1)), extends to sentences based on convictions by plea agreement specifying a stipulated imprisonment term. (See People v. Brooks (2020) 58 Cal.App.5th 1099, 1106 (Brooks).) We conclude that it does not.
"We decide statutory interpretation de novo [citation], always taking as our starting point 'the statutory language because the words of a statute are generally the most reliable indicator of legislative intent.' [Citation.] Absent ambiguity, there is no need to go beyond the plain language of the statute at issue." (Brooks, supra, 58 Cal.App.5th at p. 1106.)
Section 1170.91, subdivision (a), provides that: "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."
Section 1170.91, 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 and request resentencing pursuant to subdivision (a) "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 . . . .' " (Brooks, supra, 58 Cal.App.5th at p. 1104 (Brooks); see § 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.' " (Brooks, at p. 1104; see § 1170.91, subd. (b).) "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." (Brooks, at p. 1104.)
Defendant reads section 1170.91, subdivision (b), broadly, arguing that it allows retroactive relief in "cases that had been resolved by a plea bargain." The court in People v. King (2020) 52 Cal.App.5th 783 (King) recently addressed this issue. In that case, the court acknowledged that section 1170.91, subdivision (b), provides that "[a] person currently serving a sentence for a felony conviction, whether by trial or plea, . . . may petition for a recall of sentence." (§ 1170.91, subd. (b)(1), italics added.) It stated that the defendant was not precluded from obtaining relief "merely because he entered into a plea agreement" but noted that the defendant "did not only enter into a plea. Unlike a defendant who enters into an open plea, [the defendant] also agreed to a specific prison term of 30 years." (King, at p. 790.)
Focusing on the language of the statute, the King court explained that the defendant was ineligible for relief, as follows: "A petitioner who meets the requirements set forth in section 1170.91, subdivision (b) obtains the remedy of 'resentencing pursuant to subdivision (a).' [Citation.] Subdivision (a) provides that the trial court shall take into account the defendant's mental health and substance abuse problems 'when imposing a term under subdivision (b) of Section 1170." [Citation.] A trial court that sentences under subdivision (b) of section 1170, exercises its discretion to choose an upper, middle or lower determinate term based on its consideration of factors in mitigation and aggravation. However, when a trial court sentences a defendant who has agreed to a stipulated sentence for a term of years, the trial court exercises no discretion to decide between an upper, middle and lower term and may not consider factors in mitigation and aggravation. Therefore, the trial court is not 'imposing a term under subdivision (b) of Section 1170.' [Citation.] As a result, a petitioner, like King, who agreed to a stipulated sentence for a specific prison term cannot obtain the relief afforded under section 1170.91, subdivision (b)(1), as that petitioner cannot be resentenced under subdivision (b) of Section 1170 to an upper, middle or lower term based on factors in mitigation and aggravation." (King, supra, 52 Cal.App.5th at p. 791.)
The court in King further explained that "because King entered into a plea, which included a stipulated sentence for a term of 30 years, even if the trial court granted relief under the petition by recalling King's sentence and holding a new sentencing hearing, it would be precluded from considering King's mental health and substance abuse problems in mitigation and imposing a lesser prison sentence when sentencing King. Instead, based on the plea agreement, which remains in force, the trial court would still be required to impose the stipulated sentence of 30 years in prison. Therefore, King would not be able to obtain any relief in the form of a reduced sentence under section 1170.91, subdivision (b)." (King, supra, 52 Cal.App.5th at p. 791.)
Here, defendant stands in the same position as the defendant in King, and his argument fails for the same reasons. He agreed to a stipulated sentence of 18 years in prison pursuant to a plea agreement under which he pled guilty to three counts and admitted three enhancements, and the court dismissed the remaining counts and allegations. Accordingly, the court did not consider factors in mitigation and aggravation or exercise discretion to decide between an upper, middle or lower term when it sentenced defendant. (King, supra, 52 Cal.App.5th at p. 791; see §§ 1170, subd. (b), 1170.1, subd. (a).) In other words, the court did not impose a sentence under section 1170, subdivision (b). Therefore, the relief provided under section 1170.91, subdivision (b), does not apply since he cannot be resentenced to an upper, middle or lower term based on factors in mitigation and aggravation. (King, at p. 791; see Brooks, supra, 58 Cal.App.5th at pp. 1106-1109.) In other words, because defendant entered into a plea that included a stipulated sentence for a term of 18 years, the second judge was precluded from considering his mental health problems in mitigation and imposing a lesser prison sentence. (King, supra, 52 Cal.App.5th at p. 791.) "[A]ny exercise of discretion reducing [his] sentence would necessarily modify the terms of his plea agreement while otherwise leaving the plea agreement intact. Nothing in the statute suggests an intent to overturn, sub silentio, long-standing plea-bargaining law binding courts to the agreements they approve." (Brooks, supra, 58 Cal.App.5th at p. 1107.) The second judge was required to impose the stipulated term of 18 years since the plea agreement remained in force. (King, at p. 791.) Thus, the second judge properly concluded that section 1170.91 relief was not available and denied defendant's petition.
Defendant argues that King was wrongly decided and claims that "the trial court is empowered to resentence [him] under Harris [v. Superior Court (2016) 1 Cal.5th 984 (Harris)]" and may thereby "choose from the low, middle or high terms as contemplated under section 1170.91, subdivision (a)." However, "[t]he 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." (Brooks, supra, 58 Cal.App.5th at p. 1105.) "[T]he court held that despite the defendant's conviction having come from a plea agreement specifying a stipulated term, the defendant was still entitled to the benefit of Proposition 47 reclassifying his conviction from a felony to a misdemeanor." (Ibid.; see Harris, supra, 1 Cal.5th at p. 991.)
Harris is inapposite here since it involved Proposition 47 and a scenario in which a resentencing court was "asked to reject [a] stipulated plea agreement[] categorically under retroactively conferred resentencing authority, thus eliminating the legal basis for the conviction under section 1170.18." (Brooks, supra, 58 Cal.App.5th at p. 1107.) "When the Legislature makes an ameliorative change in the law that specifically contemplates the change will apply to all convictions, final or nonfinal, whether suffered by trial or plea, resentencing eligibility will follow, even for defendants whose convictions have been final for many years." (Ibid.) Unlike Proposition 47, "section 1170.91 does not eliminate the legal basis for [defendant's] conviction or grant the trial court unfettered discretion to reconsider an aspect of his sentence that would in turn affect his plea bargain. All it does is allow a court to take certain mitigating factors into account, and only insofar as the court is otherwise permitted to exercise discretion in the selection of a low, middle, or high term from within the applicable sentencing triad." (Ibid.) Contrary to defendant's claim, Harris does not somehow "empower" the court here to resentence him and choose between the upper, middle or lower term.
Defendant also cites People v. Bonilla-Bray (2020) 49 Cal.App.5th 234, in support of his position that section 1170.91, subdivision (b) "explicitly includes matters that were resolved by plea agreement." However, although the defendant in that case did plead guilty pursuant to a plea agreement, the court did not address the issue of whether the authority granted by section 1170.91, subdivision (b), extends to sentences based on convictions by plea agreement specifying a stipulated term. The People simply conceded that the defendant met the statutory requirements for relief under section 1170.91, and that the trial court erred in summarily denying his petition without holding a hearing. (Bonilla-Bray, at pp. 237-239.)
In sum, defendant has given us no valid reason to depart from the reasoning of King, supra, 52 Cal.App.5th 783. We thus conclude that the second judge properly denied his section 1170.91 petition.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J. We concur: McKINSTER
Acting P. J. MILLER
J.