Opinion
S265734
02-17-2021
PEOPLE v. VALLIANT (ALEXANDER IRWIN)
G058568 Fourth Appellate District, Div. 3
The petition for review is denied.
Concurring Statement by Justice Liu
Alexander Irwin Valliant filed a petition to recall the sentence for his conviction of second degree robbery and for resentencing pursuant to Penal Code section 1170.91, subdivision (b). Since 2015, section 1170.91 has required courts to consider as a factor in mitigation at sentencing whether “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 [(PTSD)], substance abuse, or mental health problems as a result of his or her military service.” (Pen. Code, § 1170.91, subd. (a); further statutory references are to this code.) In 2018, the Legislature gave this statute retroactive effect, allowing military veterans who suffer from such military-related conditions, and who did not have those circumstances considered when initially sentenced, to petition to recall the sentence and be resentenced. (§ 1170.91, subd. (b).)
To be eligible to file such a petition, however, the statute requires that any such military-related condition “was not considered as a factor in mitigation at the time of sentencing” and that “[t]he person was sentenced prior to January 1, 2015.” (Pen. Code, § 1170.91, subd. (b)(1)(A)-(B).) Valliant was sentenced in March 2015 and therefore does not meet the latter requirement. For this reason, the superior court denied his petition and the Court of Appeal affirmed. (See People v. Valliant (2020) 55 Cal.App.5th 903.)
Yet it is undisputed that Valliant's military-related conditions - PTSD and opioid abuse disorder - were not considered during his sentencing in 2015. In fact, it was not until 2017 that the United States Department of Veterans Affairs (VA) verified that his conditions stemmed from his military service. Thus, Valliant is in the unfortunate position of not having had his military-related conditions considered at his initial sentencing while also being ineligible for resentencing pursuant to section 1170.91, subdivision (b).
I agree with the Court of Appeal that it is unlikely the Legislature specifically intended this result. (See Valliant, supra, 55 Cal.App.5th at p. 912 [“[W]e wonder if the Legislature foresaw this result when it passed section 1170.91. While Valliant's position here may be unusual, we doubt it is unique. With that thought in mind, we invite the Legislature to revisit this issue and, if it believes it is appropriate to do so, to provide Valliant and any other veteran in a similar position, with statutory relief.”].) Indeed, the author of Assembly Bill No. 865 (2017-2018 Reg. Sess.), which made section 1170.91 retroactive, found it “[u]nfortunate[]” that section 1170.91 “does not apply to veterans convicted prior to January 1, 2015” and through the amendment sought to “ensure there is equal treatment of all veterans, not just those convicted after January 1, 2015.” (Sen. Com. on Veterans Affairs, Analysis of Assem. Bill No. 865 (2017-2018 Reg. Sess.) as amended Apr. 30, 2018, pp. 4-5.) Yet, by requiring that the original sentencing occur prior to January 1, 2015, for an individual to be eligible for resentencing - irrespective of when it was determined that the trauma, mental health, or substance abuse conditions were a result of military service - section 1170.91, subdivision (b) fails to ensure equal treatment of all veterans.
The January 1, 2015 requirement also makes little sense as a policy matter. With respect to PTSD, for example, the scientific literature has recognized delayed onset PTSD, particularly among veterans, where symptoms can take time to fully manifest. (See, e.g., Yehuda et al., Post-Traumatic Stress Disorder (Oct. 8, 2015) 1 Nature Reviews Disease Primers 1, 9-10; Creamer et al., PTSD Among Military Personnel (Apr. 2011) 23:2 Internat. Rev. of Psychiatry 160, 161-162.) And for PTSD related to sexual trauma, “it may take years for one to recognize an incident as sexual trauma, and in some cases, a fragmented memory of the event may delay acknowledgment even more.” (Kintzle et al., Sexual Trauma in the Military: Exploring PTSD and Mental Health Care Utilization in Female Veterans (2015) 12:4 Psychological Services 394, 398.) Moreover, it also takes time for conditions like PTSD to be diagnosed and to administratively establish a connection to military service. Although a veteran can file a claim with the VA to establish a service-connected condition or disability, “there is a tremendous backlog of claims at VA, and it can take many years for a claim to work its way through the system.” (Derro, Service-Connected Disability Claims Before the U.S. Department of Veterans Affairs: A Brief Tutorial (Feb. 2015) 94:2 Mich. B.J. 26, 28, fn. omitted.) Thus, a strict time requirement in these circumstances can lead to arbitrary and inequitable results.
There has been some recognition by the Legislature of the need to address this issue. Assembly Bill No. 581 (2019-2020 Reg. Sess.), for instance, would have provided relief to veterans like Valliant. The bill recognized that “even though Section 1170.91 was in effect starting January 1, 2015, some defendants may not have benefitted from the change in law either because some were unaware of the change or because evidence of the service-related trauma was not available or was unknown at the time of sentencing.” (Sen. Com. on Veterans Affairs, Analysis of Assem. Bill No. 581 (2019-2020 Reg. Sess.) as amended Feb. 14, 2019, p. 3.) But that bill never became law, so I echo the Court of Appeal's call for renewed legislative attention to this issue.
LIU, J.