Opinion
C099701
04-17-2024
THE PEOPLE, Plaintiff and Respondent, v. FRANCISCO XAVIER FERNANDEZ, Defendant and Appellant.
NOT TO BE PUBLISHED
(Super. Ct. No. CRF16-06602)
HULL, Acting P. J.
Defendant Francisco Xavier Fernandez appeals from the trial court's summary denial of his petition for recall of sentence, filed pursuant to Penal Code section 1170.91 (statutory section citations that follow are to the Penal Code unless otherwise stated). Defendant contends the trial court violated his right to due process of law by failing to give the prosecutor a chance to agree to modify his plea agreement. The People agree we should reverse the trial court's order, but for a different reason: the Legislature recently amended section 1170.91 in order to override the case law upon which the trial court relied in denying defendant's petition. We agree with the People and will remand for the trial court to conduct a hearing and apply the amended version of section 1170.91.
FACTS AND HISTORY OF THE PROCEEDINGS
In 2019, in Sutter County, defendant pleaded no contest to assault with a semiautomatic rifle and admitted personally using a firearm and personally inflicting great bodily injury in committing the offense. The trial court imposed the stipulated sentence of 10 years in prison. Approximately four months later, in Shasta County, defendant pleaded no contest to maliciously discharging a firearm at an inhabited house and admitted personally using a firearm in committing the offense. The plea agreement for the Shasta County case included a stipulated aggregate sentence for the two cases of 15 years 4 months in prison. The court sentenced defendant to the upper term of seven years in prison for discharging a firearm at an inhabited house, the middle term four-year prison sentence for the firearm enhancement, plus one third the middle term sentence for each offense in the Sutter County case-two years for assault with a semiautomatic rifle, one year four months for the firearm enhancement, and one year for the great bodily injury enhancement. The court did not consider defendant's military service or any trauma, injury, or condition resulting from that service when imposing the stipulated sentence.
In July 2023, defendant filed a petition for recall of sentence pursuant to section 1170.91, subdivision (b). The petition alleged that defendant had served in the United States military and believed he was suffering from service-connected trauma, injuries, or conditions, specifically a traumatic brain injury, post-traumatic stress disorder, anxiety, and a chronic sleep disorder. The petition also alleged that defendant believed that the judge at his sentencing did not consider these service-connected trauma, injuries, or conditions as factors in deciding his sentence. Defendant attached to his petition a November 2022 decision from the Department of Veterans Affairs indicating defendant was 100 percent disabled due to post-traumatic stress disorder, 40 percent disabled due to a traumatic brain injury, 30 percent disabled due to headaches, and 10 percent disabled due to gastroduodenitis.
The trial court summarily denied defendant's petition. The court reasoned that, because defendant had agreed to a stipulated sentence, section 1170.91 did not apply. The court cited People v. Brooks (2020) 58 Cal.App.5th 1099, People v. King (2020) 52 Cal.App.5th 783, and People v. Pixley (2022) 75 Cal.App.5th 1002 in support of its position. The court did not acknowledge that, after the issuance of those three opinions, the Legislature had amended section 1170.91, effective January 1, 2023, (see Stats. 2022, ch. 721), nor did the court analyze the effect of the amendments on its analysis.
Defendant appealed from the court's order. On our own motion, we deem defendant's notice of appeal to have been timely filed because he "has sufficiently shown that he presented the notice of appeal to the trial court for filing on . . . the date the notice of appeal was due." (Lezama-Carino v. Miller (2007) 149 Cal.App.4th 55, 59; accord Rapp v. Golden Eagle Ins. Co. (1994) 24 Cal.App.4th 1167, 1172; see Cal. Rules of Court, rules 8.25(b), 1.20.)
DISCUSSION
The current version of section 1170.91, which took effect January 1, 2023, permits "[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" to "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).) Upon receiving such a petition, the trial court is required to hold a public hearing to determine "whether the person satisfies the criteria in this subdivision." (§ 1170.91, subd. (b)(3).)
"If the person satisfies the criteria, the court may, in the interest of justice, and regardless of whether the original sentence was imposed after a trial or plea," either: (A) "[r]educe the defendant's term of imprisonment by modifying the sentence" or (B) with the concurrence of both the defendant and the prosecutor, "[v]acate the conviction and impose judgment on any necessarily included lesser offense or lesser related offense, whether or not that offense was charged in the original pleading, and then resentence the defendant to a reduced term of imprisonment." (§ 1170.91, subd. (b)(3).)
Among the recent amendments, the Legislature specified that defendants could be resentenced "regardless of whether the original sentence was imposed after a trial or plea" and that the resentencing provision "shall apply retroactively." (Sen. Bill No. 1209 (2021-2022 Reg. Sess.) § 1; Stats. 2022, ch. 721.) By making these changes, "the Legislature clearly intended to make persons serving a stipulated sentence eligible for relief under section 1170.91." (People v. Harrell (2023) 95 Cal.App.5th 161, 168.)
These amendments were already in effect at the time defendant filed his petition. The trial court erred by applying case law that had been superseded by the Legislature and denying defendant's petition solely because he had agreed to a stipulated sentence. Contrary to the court's ruling, it did not lack jurisdiction to change defendant's stipulated sentence because "the terms of the plea bargain include future changes in the law." (People v. Harrell, supra, 95 Cal.App.5th at p. 168.) "By implementing such changes, the trial court is not altering the terms of the plea bargain." (Ibid.) "Moreover, the trial court does not have to give the prosecution an opportunity to withdraw from the plea bargain" because" 'the goals of the legislation . . . would be thwarted if the prosecution could routinely withdraw from plea agreements' whenever the defendant seeks relief." (Id. at pp. 168-169.)
Even under the prior version of section 1170.91, the trial court erred by not holding the required public hearing to determine whether defendant "satisfies the criteria in this subdivision." (Former § 1170.91, subd. (b)(3), as amended by Stats. 2018, ch. 523, § 1.) Section 1170.91 does not contain a procedural mechanism for summarily denying a petition. (Cf. § 1172.6, subd. (b)(2)-(3).) Rather, the Legislature required the determination to be made publicly, with the prosecution given an opportunity to be heard. (§ 1170.91, subd. (b)(3).)
Because the only reason the trial court gave for denying defendant's petition was its erroneous determination that his stipulated sentence excluded him from eligibility, we cannot say the error was harmless. (See People v. Salazar (2023) 15 Cal.5th 416, 431 ["when a court has not exercised its informed discretion, remand is the default 'unless the record "clearly indicate[s]" that the trial court would have reached the same conclusion "even if it had been aware that it had such discretion"' "].) Accordingly, we will reverse the trial court's order and remand for a hearing on defendant's petition.
DISPOSITION
The order denying defendant's petition for recall of sentence is reversed and the case is remanded for a hearing, as required by section 1170.91, subdivision (b)(3).
We concur: ROBIE, J., MAURO, J.