Opinion
B300898
05-27-2020
THE PEOPLE, Plaintiff and Respondent, v. JOSEPH MICHAEL TAUBMAN, Defendant and Appellant.
James Koester, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Stephen D. Matthews and Michael J. Wise, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. BA358718) APPEAL from an order of the Superior Court of Los Angeles County. Michael D. Abzug, Judge. Reversed and remanded. James Koester, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Stephen D. Matthews and Michael J. Wise, Deputy Attorneys General, for Plaintiff and Respondent.
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Defendant and appellant Joseph Michael Taubman appeals from the summary denial of his petition for resentencing pursuant to Penal Code section 1170.91, subdivision (b)(1). We reverse.
In 2012, we affirmed defendant's conviction on one count of residential burglary, one count of robbery and one count of assault with a deadly weapon. (People v. Taubman (Apr. 25, 2012, B230600) [nonpub. opn.].) The charges arose from an incident in which defendant was interrupted in the midst of a burglary by the homeowner. The two struggled and defendant stabbed the homeowner with a screwdriver. Defendant then fled with several items of personal property belonging to the residents in the home. Defendant's friend testified that defendant had told her he was going to burglarize a home to get money to buy drugs and that he was surprised by the homeowner and accidentally stabbed him with a screwdriver. (People v. Taubman, supra, B230600.)
During the prosecution's case-in-chief, defendant, who was representing himself, told the court he wished to withdraw his not guilty plea and "enter an open plea." (People v. Taubman, supra, B230600.) After lengthy advisements, the court accepted defendant's waivers on the record and defendant pled no contest to all three felonies. Defendant also admitted the prior conviction allegations. He was sentenced to 21 years in state prison. (Ibid.)
In July 2019, defendant filed a petition in propria persona requesting resentencing pursuant to Penal Code section 1170.91, subdivision (b)(1), a statutory provision that became effective January 1, 2019. (Stats. 2018, ch. 523, § 1.)
The trial court summarily denied the petition by written order without holding a hearing, finding that defendant alleged he suffered depression after his military discharge, and not as a result of his service. The court found the benefits eligibility records from the Department of Veterans Affairs did not state whether defendant's mental health condition pre-existed his military service.
Defendant now appeals, contending the trial court erred in summarily denying his petition. Defendant argues he demonstrated a prima facie case for resentencing consideration at a new sentencing hearing in accordance with subdivision (b)(3) of Penal Code section 1170.91. We agree.
Penal Code section 1170.91 was amended, effective January 1, 2019, to allow former members of the United States military, like defendant, to seek resentencing. Section 1170.91, subdivision (b)(1) provides as follows: "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.)
It is undisputed defendant was sentenced in 2010. It is also undisputed the record of the original sentencing hearing shows the court did not consider defendant's military service or any service-related disability as a mitigating factor.
Defendant stated in his petition that his "substance abuse has always been [his] attempt to medicate the underlying depressive state that [he] suffered from after [his] discharge from the service." The petition included a copy of his discharge from the United States Navy, as well as a copy of a 2015 letter from the Department of Veterans Affairs acknowledging its determination that defendant suffered from a 70 percent disability related to "persistent depressive disorder." A veteran may only obtain disability compensation if he or she has established the existence of a present disability, "in-service incurrence" or in-service aggravation of a preexisting condition, and a causal connection between the present disability and service. (See, e.g., Holton v. Shinseki (Fed.Cir. 2009) 557 F.3d 1362, 1366.)
Penal Code section 1170.91, subdivision (b)(3) states that "[u]pon 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."
Defendant satisfied the statutory requirements for a resentencing hearing at which his claim of eligibility for a reduced sentence is considered on the merits. The trial court's order denying the petition is therefore reversed and the case remanded for further proceedings in accordance with the statutory scheme.
DISPOSITION
The July 31, 2019 order denying the petition for resentencing is reversed. The case is remanded to the superior court with directions to conduct further proceedings in accordance with Penal Code section 1170.91, subdivision (b).
After completing the resentencing hearing, the superior court is directed to prepare and transmit an abstract of judgment to the Department of Corrections and Rehabilitation.
GRIMES, J.
WE CONCUR:
BIGELOW, P. J.
STRATTON, J.