Opinion
H051176
10-30-2024
THE PEOPLE, Plaintiff and Respondent, v. EUGENE CARLTON BROWN, Defendant and Appellant.
NOT TO BE PUBLISHED
(Santa Clara County Super. Ct. No. 177519)
GREENWOOD, P. J.
A jury convicted defendant Eugene Carlton Brown of nine felony sex offenses against three women. In 2022, Brown filed a petition for resentencing pursuant to Penal Code section 1170.91, which permits military veterans with certain mental health conditions to seek a new sentencing hearing. Before Brown's hearing was conducted, the Legislature amended section 1170.91 to exclude individuals required to register as a sex offender from obtaining sentencing relief. (§ 1170.91, subd. (c).) As a result, the trial court denied Brown's petition for resentencing.
Subsequent undesignated statutory references are to the Penal Code.
Brown argues that applying subdivision (c) of section 1170.91 to a pending petition filed before the amendment's effective date would give the amendment impermissible retroactive effect. He alternatively argues that the trial court denied him due process by delaying the appointment of counsel such that his petition was decided after the effective date of the amendment to 1170.91. We disagree as we are persuaded by the reasoning of People v. Sherman (2023) 91 Cal.App.5th 325 (Sherman) that subdivision (c) applies to render defendants with petitions pending at the time of the amendment ineligible for relief. We conclude that the timing of the appointment of counsel did not violate Brown's due process. We affirm the trial court's order denying the petition.
On our own motion, we take judicial notice of Brown's prior appeal, case No. H015636 The People v. Eugene Carlton Brown. (Evid. Code, §§ 452, subd. (d), 459.) The facts of Brown's crimes are not relevant to our discussion. We therefore include only the relevant procedural history.
In March 1996, a jury convicted Brown of three counts of oral copulation by force against victim Jamie Doe, with a true finding that he kidnapped her to commit each sex offense (§ 288a, subd. (c); § 667.8, subd. (a) [counts 1, 2, 3]); one count of assault with intent to commit rape (§ 220 [count 4]); and one count of kidnapping with intent to commit rape (§ 207, subd (a); former § 208, subd. (d) [count 5]). The jury also convicted Brown of two counts of rape against victim Tina Doe (§ 261, subd. (a)(2) [counts 6, 7]); and one count of oral copulation by force (§ 288a, subd. (c) [count 8]); with true findings for each count that he had kidnapped her to commit the underlying sexual offense (§ 667.8, subd. (a)). Brown was also convicted of rape against Sara Doe with a true finding that he used a deadly weapon and kidnapped her to commit rape. (§ 261, subd. (a)(2); § 12022.3, subd. (a); § 667.8, subd. (a) [count 9].) The trial court imposed an aggregate sentence of 79 years and 4 months in state prison. Following Brown's appeal, this court affirmed the judgment but modified the sentence to 71 years and 4 months in state prison. The parties acknowledge Brown was required to register as a sex offender under section 290, subdivision (c) as a result of the sentence imposed.
On October 20, 2022, Brown filed a petition for resentencing pursuant to section 1170.91, which permits military veterans who meet certain statutory criteria to apply for resentencing. In his petition and supporting documents, Brown asserted that he qualified for resentencing under section 1170.91 because he was a military veteran who had served in the United States Army, and that he had suffered trauma resulting from a sexual assault he had suffered during that service.
On December 9, 2022, the trial court appointed counsel for Brown and set a briefing schedule. The court ordered the district attorney to file a written response to the petition within 30 days of the order, and stated further that Brown could file a reply within 30 days thereafter. The district attorney filed its opposition to the petition on February 9, 2023, after the trial court granted a request for an extension of time to respond. Defense counsel filed a brief in support of resentencing on March 10, 2023, and on March 24, 2023, the district attorney filed a reply. On June 21, 2023, the trial court denied the petition in a written order, finding that Brown was ineligible for relief based on an amendment to section 1170.91 effective January 1, 2023, excluding individuals required to register as a sex offender from the statute's resentencing provisions. (§ 1170.91, subd. (c).).
Brown timely appealed.
II. Discussion
A. Standard of Review
Brown argues that subdivision (c) of section 1170.91, which would render him ineligible for ameliorative sentencing relief as a registered sex offender, would be made retroactive if applied to petitions that were pending before the time the amendment took effect, and thus does not apply to him. "This is a question of statutory interpretation, which we review de novo. [Citation.]" (Sherman, supra, 91 Cal.App.5th at p. 329.) He further argues that the trial court denied him due process by delaying the appointment of counsel such that his petition could not be decided before the January 1, 2023 effective date of the preclusive amendment.
i. History
"Sections 1170.9 and 1170.91 obligate a sentencing court to consider a criminal defendant's qualifying service-related conditions as mitigating circumstances in making discretionary sentencing choices." (People v. Panozo (2021) 59 Cal.App.5th 825, 831.) Section 1170.91 provides that "[i]f 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 the defendant's military service, the court shall consider the circumstance as a factor in mitigation when imposing a sentence." (§ 1170.91, subd. (a).)
The Legislature amended section 1170.91 in 2018, to add subdivision (b), which "authorizes retrospective relief for previously sentenced criminal defendants who may suffer from one of the qualifying conditions as a result of their military service." (Sherman, supra, 91 Cal.App.5th at p. 329.) At the time of its enactment, "subdivision (b) allowed a defendant who was sentenced before January 1, 2015 to petition the court for a recall of the sentence and request resentencing 'pursuant to subdivision (a)' if his or her qualifying condition 'was not considered as a factor in mitigation at the time of sentencing. [Citation.]' " (Sherman, at p. 329.)
Subdivision (b)(1) now states in full: "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 the person's military service may petition for a recall of sentence, before the trial court that entered the judgment of conviction in the case, to request resentencing if 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." (§ 1170.91, subd. (b)(1).)
In 2022, the Legislature amended the statute to, among other things, expand eligibility for relief by eliminating the requirement that a defendant must have been sentenced before January 2015, and adding a provision to subdivision (b) stating that it "shall apply retroactively." (Sherman, supra, 91 Cal.App.5th at p. 330; § 1170.91, subd. (b)(10).) The Legislature also added subdivision (c), to restrict eligibility for sentencing relief, stating that the statute "does not apply to a person convicted of, or having one or more prior convictions for, an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or an offense requiring registration pursuant to subdivision (c) of Section 290." (§ 1170.91, subd. (c).) The amended statute, including the new subdivision (c), became effective on January 1, 2023.
ii. Applicability of Subdivision (c)
The parties do not dispute Brown's eligibility for rehearing under the original version of section 1170.91; their dispute centers on whether subdivision (c) applies to Brown's petition that was pending on the effective date of subdivision (c), thereby rendering him ineligible for resentencing under the amended statute. Brown concedes he is "statutorily ineligible for resentencing pursuant to subdivision (c) because he was convicted of offenses that require him to register pursuant to subdivision (c) of section 290: sections 207, 220, 261, and 288a." He contends, however, that subdivision (c) of section 1170.91 "should not apply retroactively to [his] resentencing petition because his petition was already pending when the amendment took effect on January 1, 2023."
As a general matter, "[a]bsent an express declaration of retrospectivity or other clear indication that the Legislature intended retrospective application, a new statute is presumed to operate prospectively. [Citation.]" (Brenton v. Metabolife Internat., Inc. (2004) 116 Cal.App.4th 679, 688 (Brenton).) But" '[t]he repeal of a statute which provides a remedy to a party is fully prospective and applies to pending actions.'" (People v. Bradley (1998) 64 Cal.App.4th 386, 397 (Bradley), quoting Tapia v. Superior Court (1991) 53 Cal.3d 282, 288-291, italics added.) This principle applies with greater force when the remedial statute repealed is itself one of retroactive application.
To determine whether a statute would have improper retroactive application, courts have looked at whether the statute is substantive or procedural. (Brenton, supra, 116 Cal.App.4th at p. 688.) "[I]f a statutory change is substantive because it would impose new, additional or different liabilities based on past conduct courts are loath to interpret it as having retrospective application," but "applying changed procedural statutes to the conduct of existing litigation, even though the litigation involves an underlying dispute that arose from conduct occurring before the effective date of the new statute, involves no improper retrospective application because the statute addresses conduct in the future." (Id. at pp. 688-689.) "[T]he presumption against retrospective construction does not apply to statutes relating merely to remedies and modes of procedure." (ARA Living Centers - Pacific, Inc. v. Superior Court (1993) 18 Cal.App.4th 1556, 1561.) Therefore, "[w]here . . . the Legislature has conferred a remedy and withdraws it by amendment or repeal of the remedial statute, the new statutory scheme may be applied to pending actions without triggering retrospectivity concerns. [Citation.]" (Brenton, at p. 690.)
These principles were applied to the newly-amended section 1170.91 in the case of Sherman, supra, 91 Cal.App.5th 325. Brown contends Sherman was wrongly decided. We disagree.
In Sherman, a jury convicted the defendant of drugging, raping, and/or sexually assaulting five women. (Sherman, supra, 91 Cal.App.5th at p. 328.) Following an initial appeal, the trial court sentenced the defendant to a total of 123 years to life. (Ibid.) In 2020, the defendant filed a motion to recall his sentence and for resentencing under section 1170.91, which the trial court denied. (Id. at pp. 328-329.) In the appeal from that order, the Attorney General asserted that Sherman was "categorically ineligible for relief" under the 2022 amendment to 1170.91 that became effective while Sherman's appeal was pending. Sherman conceded that he "would be ineligible for relief" under subdivision (c). However, he argued that the subdivision did not apply to him "because it did not become effective until January 1, 2023, after the trial court proceedings on his section 1170.91 petition, and it does not apply retroactively to pending cases." (Id. at p. 330.) The Sherman court concluded that subdivision (c) applied to make the defendant ineligible for relief.
The Sherman court noted Brenton's rule that the Legislature's withdrawal of a remedy by amendment or repeal of a statute does not trigger retroactivity concerns in the new statute, stating that this "rule also applies to a partial repeal of an existing statutory right or remedy" and "[t]he same rule has also been applied to the repeal of a statutory provision designed to ameliorate criminal punishment." (Sherman, supra, 91 Cal.App.5th at pp. 330-331.) The Sherman court concluded that section 1170.91 is "a remedial statute designed to allow the trial court to ameliorate the effects of a potentially excessive sentence for criminal defendants who may suffer from qualifying mental health conditions or substance abuse as a result of their military service. By amending section 1170.91 to add subdivision (c)-a carve-out provision making certain groups of defendants who were previously eligible for relief categorically ineligible-the Legislature effectively accomplished a partial repeal of the statute." (Id. at p. 331.) This meant that the defendant in Sherman asserted "a purely statutory right to be resentenced [and had] no vested right to resentencing under section 1170.91." (Id. at pp. 331-332.)
Brown argues that Sherman mistakenly relied on Bradley, supra, 64 Cal.App.4th 386. While Bradley's appeal was pending, section 1170.1, subdivision (h), a statute granting courts authority to strike prison priors, was repealed. Bradley addressed whether on remand from the Court of Appeal the trial court would be required to apply the repealed statute to grant him potential relief, or the current law, which would preclude it. (Id. at p. 396.) Acknowledging that the question was both close and difficult, the court concluded that the defendant had no right to invoke the repealed statute on resentencing. (Id. at pp. 396-397.) The court cited Southern Service Co., Ltd., v. Los Angeles (1940) 15 Cal.2d 1, 12:" 'The unconditional repeal of a special remedial statute without a saving clause stops all pending actions where the repeal finds them. If final relief has not been granted before the repeal goes into effect it cannot be granted afterwards, even if a judgment has been entered and the cause is pending on appeal. The reviewing court must dispose of the case under the law in force when its decision is rendered.'" (Bradley, supra, 64 Cal.App.4th. at p. 397.) The court in Sherman applied this reasoning to decide that "[t]he law in force" when it considered the appeal included the 2022 amendment to 1170.91, subdivision (c), which precluded petitioner from receiving sentencing relief. (Sherman, supra, 91 Cal.App.5th at pp. 331-332.)
Brown argues that the Sherman court wrongly applied Bradley because section 1170.91 includes language that, properly interpreted, demonstrates that the Legislature intended that subdivision (c) should not be applied retroactively, in essence saving Brown from the effect of the 2022 statutory amendment. He notes that subdivision (b) of section 1170.91 expressly states that "[t]his subdivision shall apply retroactively," but subdivision (c) omits such language. Invoking principles of statutory construction, he argues that this omission suggests that the Legislature intended that only subdivision (b) be given retroactive effect, as the court cannot add text to the language used by the Legislature. (Hampton v. County of San Diego (2015) 62 Cal.4th 340, 350.) But the ordinary application of subdivision (c) to a decision made after the amendment became effective is not "retroactive"; rather, subdivision (c) operates prospectively to limit subdivision (b)'s retroactive application to sentences imposed before subdivision (b) was enacted.
Brown's argument was also addressed in Sherman. In a careful examination of the legislative history of the statute, the appellate court concluded that construing subdivision (c) in the manner suggested here by Brown would defeat the Legislature's intent by providing relief to a group of offenders "the Legislature has now decided should be categorically ineligible ...." (Sherman, supra, 91 Cal.App.5th at p. 332.) "As first proposed . . ., the substance of what eventually became subdivision (c) was part of subdivision (b) - and was later moved to its own subdivision for reasons having nothing to do with retroactivity. [¶] . . . Because the original version of the carve-out made clear that the Legislature intended it to apply to pending cases along with the rest of subdivision (b), and the carve-out was later moved to subdivision (c) for reasons having nothing to do with the retroactivity provision, the legislative history supports our view that the Legislature intended it to apply to pending cases." (Id. at pp. 332-333.)
Further, the court noted that by amending section 1170.91 in 2022, the Legislature expanded the ameliorative relief provided in section 1170.91 to include indeterminate sentences while at the same time restricting its application by excluding super-strike offenses and offenses requiring registration as a sex offender. The expansion and restriction of statutory relief were "directly linked" to one another. "The Legislature evidently intended to eliminate the general exclusion for indeterminate sentences and at the same time replace it with a more targeted carve-out for the specified disqualifying offenses. In these circumstances, it would defeat the Legislature's intent to apply the expanded eligibility provision to pending cases, but not the accompanying replacement provision restricting eligibility." (Sherman, supra, 91 Cal.App.5th at p. 333.)
We are persuaded by the Sherman court's analysis of retroactivity principles and the legislative history of section 1170.91, subdivisions (b) and (c). We agree that excluding the application of section 1170.91, subdivision (c) from pending cases would be contrary to the intent of the Legislature. Accordingly, we conclude subdivision (c) renders Brown ineligible for resentencing under section 1170.91.
C. Delay in Appointment of Counsel
Brown further asserts that the trial court denied him due process of law because it did not decide the petition before the effective date of subdivision (c), thus rendering Brown's eligibility for relief dependent on how promptly his petition was addressed by the trial court. Specifically Brown argues that his right to due process was violated because the trial court did not appoint him counsel until December 9, 2022, although he filed his petition on October 20, 2022. Because the court considered and denied his petition in June 2023, after the effective date of the amendment to 1170.1, subdivision (c), Brown contends the delay in appointment of counsel denied him a chance for a hearing and decision prior to the statutory amendment, when he would have been eligible for relief.
We note that Brown appears to tacitly concede that because his case was decided after the effective date of section 1170.91, subdivision (c), he was precluded from relief because the trial court at that time was compelled to apply the law"' "in force when its decision is rendered." '" (Bradley, supra, 64 Cal.App.4th at p. 397, italics omitted.) Specifically, he states that "the court's delay denied appellant of a chance for a hearing and decision prior to the changes in the law that now make him ineligible for requesting relief pursuant to section 1170.91."
We are not persuaded that the trial court erred when it appointed counsel and set the briefing schedule on the petition. Brown contends that "[t]he denial of [his] right to a timely hearing is akin to a pre-accusatory delay in filing charges against a defendant." He argues further that both the California Constitution and U.S. Constitution provide a right to a speedy public trial, which California has extended to the preindictment and prearrest stage, and that in any event, principles of due process should apply here. But Brown cites no authority for the proposition that the constitutional speedy trial rights that protect accused but not convicted persons apply to incarcerated individuals already convicted of offenses who seek relief under ameliorative sentencing provisions, and we are unaware of any such authority.
Section 1170.91 does not provide a specific timeframe within which the trial court must rule on the petition; it states only that the hearing must be held "after not less than 15 days' notice to the prosecution, the defense, and any victim of the offense." (§ 1170.91, subd. (b)(3).) Although Brown suggests the trial court could have appointed counsel within one week, he does not demonstrate that the timeframe for appointment of counsel was unreasonable, or that the trial court was required to prioritize his petition before other petitions or business of the court. Nor do we perceive appointment of counsel after 50 days have elapsed (October 20, 2022 to December 9, 2022) to represent an individual on a resentencing petition as unreasonable.
Regardless, "whether defendant's claim is based on a due process analysis or a right to a speedy trial not defined by statute, the test is the same, i.e., any prejudice to the defendant resulting from the delay must be weighed against justification for the delay." (Scherling v. Superior Court (1978) 22 Cal.3d 493, 505, fn. omitted.) The trial court in its initial order on the petition stated that the district attorney had 30 days to file a response to the petition and Brown thereafter had 30 days to file a reply. Brown makes no argument on appeal that this briefing schedule did not comply with the statute or was otherwise unreasonable or in violation of due process. Brown's assertion that the trial court could have heard and determined the merits of his petition filed on October 20, 2022 prior to January 1, 2023 when section 1170.91, subdivision (c) took effect is speculative at best.
III. Disposition
The trial court's June 21, 2023, order denying the Penal Code section 1170.91 petition is affirmed.
WE CONCUR: Grover, J., Lie, J.