Opinion
E080082
03-07-2024
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL JOHN COLEMAN, Defendant and Appellant.
Lindsey M. Ball, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Daniel Rogers and Adrian R. Contreras, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. CR59166. John D. Molloy, Judge. Affirmed with directions.
Lindsey M. Ball, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Daniel Rogers and Adrian R. Contreras, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ P. J.
Defendant Michael John Coleman was convicted in 1996 of multiple sexual offenses committed against two boys who were under the age of 14, for which he was sentenced to an aggregate sentence of more than 100 years in state prison. In 2019, defendant petitioned for resentencing pursuant to Penal Code section 1170.91, on the grounds he suffered trauma from sexual abuse while he served in the military. The trial court denied his petition and defendant appeals.
All further statutory references are to the Penal Code unless otherwise indicated.
On appeal, defendant argues (1) the trial court erred in denying his petition for resentencing on the ground he did not establish that the trauma he suffered in the military was a contributing factor in his criminal acts, and (2) the abstract of judgment must be modified to reflect that he was sentenced to 111 years, rather than 124 years. We affirm with directions to modify the abstract.
Background
We take some of the background facts from our decision in defendant's first section 1170.91 appeal, People v. Coleman (2021) 65 Cal.App.5th 817 (Coleman):
"Starting in 1988, defendant sexually molested a boy whom he was supposedly mentoring through the Big Brother program. The molestation included oral copulation and sodomy. Later, he began similarly molesting the boy's cousin. The boys disclosed the molestation in 1994. They said defendant 'would molest them every time he saw them.'
"In 1995, in a jury trial, defendant was convicted of a total of 78 sex offenses against a child victim-51 counts of a lewd act on a child under 14 (§ 288, subd. (a)), 24 counts of a lewd act on a child under 16 (§ 288, former subd. (c), now § 288, subd. (c)(1)), and 3 counts of sodomy with a person under 18 (§ 286, subd. (b)(1)). In 1996, he was given a sentence (as subsequently amended) of a total of 126 years in prison.
"In 2019, he filed a petition, in propria persona, for resentencing pursuant to section 1170.91." (Id. at p. 819.) That petition was denied by the trial court, but this court reversed with directions for the trial court to "hold a new hearing, at which it may, in its discretion, resentence defendant." (Id. at p. 824.)
On remand in 2022, the trial court resentenced defendant to 124 years in state prison but stayed 13 years, making his sentence 111 years. The trial court found under section 1170.91 that the sexual abuse defendant claimed to experience during his military service was a mitigating factor but was insufficient by itself to warrant reducing his sentence.
Defendant timely appealed.
Discussion
1. Denial of Defendant's Section 1170.91 Petition for Resentencing
Defendant argues that the trial court erred by purportedly finding him ineligible for relief under the version of section 1170.91 in effect at the time of the trial court proceedings and requiring him to establish a causal relationship between the trauma suffered during his military service and the commission of his crimes. In response, the
People assert that defendant is ineligible for relief under the 2022 amendment to section 1170.91 that became effective on January 1, 2023. (Stats. 2022, ch. 721, § 1.) This is a question of statutory interpretation, which we review de novo. (People v. Prunty (2015) 62 Cal.4th 59, 71; People v. Bonilla-Bray (2020) 49 Cal.App.5th 234, 237.)
"Section 1170.91 was originally enacted in 2014. The original statute merely required courts to consider as a mitigating factor for determinate sentencing certain specified qualifying conditions the defendant may be suffering as a result of his or her military service-sexual trauma, traumatic brain injury, posttraumatic stress disorder, substance abuse, or mental health problems. (Former § 1170.91, added by Stats. 2014, ch. 163, § 2, eff. Jan. 1, 2015.)" (People v. Sherman (2023) 91 Cal.App.5th 325, 329 (Sherman), citing People v. Stewart (2021) 66 Cal.App.5th 416, 422-423.) In 2018, the Legislature added subdivision (b) to section 1170.91, 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. Like subdivision (a), section 1170.91, subdivision (b) originally applied only to defendants who were eligible for determinate sentences. (Sherman, supra, at p. 329, citing Stewart, supra, at pp. 423424.)
After the amendment, this provision is now found in section 1170.91, subdivision (a).
In 2022, the Legislature amended the statute again, expanding subdivisions (a) and (b) to include those serving indeterminate sentences; eliminating the requirement that the defendant must have been sentenced before January 1, 2015, to be eligible for resentencing; and adding a provision explicitly stating that subdivision (b) "shall apply retroactively." (§ 1170.91, subd. (b)(10); Stats. 2022, ch. 721, § 1, eff. Jan. 1, 2023.)
In addition, the amendment to section 1170.91 restricted eligibility by adding subdivision (c), which provides, "This section does not apply to a person convicted of, or having one or more prior convictions for, an offense specified in clause (iv) of paragraph (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).) Defendant's numerous counts of conviction under section 288, subdivisions (a) and (c), require registration as a sex offender. (§ 290, subd. (c); see People v. Mosley (2015) 60 Cal.4th 1044, 1048; see also People v. Alvarado (2010) 187 Cal.App.4th 72, 76.)
Defendant argues the provision does not apply to him because when he originally filed his petition for resentencing, the subdivision rendering him ineligible had not been enacted until after he appealed the denial of his petition. We disagree. The recent decision in Sherman, held a defendant was not eligible for relief under circumstances similar to those in the present case. There, the defendant had filed his petition for resentencing prior to the amendment to the statute and appealed the denial. There, the reviewing court held the amendment applied to the defendant even if the amendment rendering him ineligible became effective while the denial of his resentencing petition was pending appeal. "When a pending matter rests solely on a statutory basis, and no rights have vested under the statute, a repeal or partial repeal of the statutory right or remedy operates prospectively and applies to the pending case." (Sherman, supra, 91 Cal.App.5th at p. 331, citing Zipperer v. County of Santa Clara (2005) 133 Cal.App.4th 1013, 1023 (Zipperer).)
The same principles and reasoning apply here. Defendant had no vested right in relief because he had asserted a purely statutory right to be resentenced prior to the amendment, which was not final when the amendment was enacted. There was no "vested right to resentencing under section 1170.91 because '[u]ntil it is fully enforced, a statutory remedy is merely an '"inchoate, incomplete, and unperfected"' right, which is subject to legislative abolition.' (Zipperer, [supra, 133 Cal.App.4th] at p. 1024.)" (Sherman, supra, 91 Cal.App.5th at pp. 331-332.) Thus, we must apply the current version of section 1170.91 in this case, including the provisions of subdivision (c).
Defendant is not entitled to resentencing under section 1170.91, subdivision (c).
2. Error in the Abstract of Judgment
Defendant argues that the abstract of judgment must be corrected because it erroneously indicates the trial court imposed a determinate term of 124 years, rather than 111 years currently imposed after the court modified the sentence by staying 13 years of the term pursuant to section 1170.1. The People agree the abstract must be amended.
On August 28, 1996, defendant was sentenced by Judge J. Thompson Hanks, who originally imposed an aggregate term of 113 years in prison, imposing an upper term of 8 years in prison for count 1 and numerous consecutive terms, and staying 13 years pursuant to former section 1170.1, subdivision (a), as reflected in the abstract of judgment. The record reveals that an amended abstract was filed on March 15, 2017, reflecting an aggregate term of 126 years, but there are no minute orders explaining the sentence change.
On October 28, 2022, the matter came before the trial court on remand following issuance of our published opinion for the resentencing hearing. At that time, the court agreed that the midterm for count 1, the principal term, would be imposed, and then discussed the multiple and conflicting abstracts of judgment filed in the matter. The court and counsel discussed how the original sentencing judge had imposed an aggregate term of 126 years, but that, as the court acknowledged, "You couldn't exceed 5 years for the subordinate, so 13 of them were stayed." The following exchange then occurred:
"THE COURT: ... if I reduce Count 1 to mid-term and did exactly what Judge Hanks did, the total aggregate term would be 124 but 13 must be stayed in this, which would mean it's total aggregate with the stayed is really 111. Do I have that right?
"MR. VON ESCH: I believe so.
"MR. MERONEK: Yeah. That does sound right."
Unfortunately, the minutes for that hearing do not refer to the total aggregate sentence imposed of 111 years, which included the original stay of 13 years after reducing the term for count 1 to the midterm of six years. Instead, the abstract filed on December 13, 2022, indicates a sentence of 124 years.
The abstract of judgment constitutes the commitment and is the order sending the defendant to prison and the process and authority for carrying the judgment and sentence into effect; no other warrant or authority is necessary to justify or require its execution. (§ 1213; People v. Mitchell (2001) 26 Cal.4th 181, 185, citing In re Black (1967) 66 Cal.2d 881, 890.)
It goes without saying that accuracy is essential in a document that prescribes the execution of sentence and is provided to Criminal Investigation and Identification (CII). (§ 1213, subd. (a).)
For this reason, we direct that the minutes of the hearing of October 28, 2022, be amended to reflect that at the resentencing hearing the court stayed 13 years of the aggregate term after reducing the term for count 1 to six years, resulting in an aggregate sentence of 111 years in state prison.
Disposition
The judgment is affirmed. The clerk of the superior court is directed to correct the minutes of the sentencing hearing, as well as the abstract of judgment to reflect the defendant's prison term is 111 years. The clerk shall forward a copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation.
We concur: McKINSTER J. MENETREZ J.