Opinion
D075610
10-11-2019
THE PEOPLE, Plaintiff and Respondent, v. SALLY MARIE MCNEIL, Defendant and Appellant.
Christine M. Aros, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Robin Urbanski and Meredith S. White, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCNO18509) APPEAL from an order of the Superior Court of San Diego County, Harry M. Elias, Judge. Affirmed. Christine M. Aros, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Robin Urbanski and Meredith S. White, Deputy Attorneys General, for Plaintiff and Respondent.
In 1996, Sally Marie McNeil was convicted of second degree murder (Pen. Code, § 187, subd. (a)). The jury also found she personally used a firearm within the meaning of section 12022.5, subdivision (a). McNeill was sentenced to an indeterminate term of 15 years to life for murder. The court imposed a consecutive term of four years (the middle term) for the firearm enhancement.
All further statutory references are to the Penal Code unless otherwise specified.
In 2019, McNeil filed a petition under section 1170.91 to recall her sentence for consideration of the impact of her military history on her culpability. The trial court summarily denied the petition, finding McNeil was not eligible for relief due to her indeterminate sentence.
McNeil appeals contending the court erred in determining she was not eligible for relief. On appeal, she concedes her indeterminate term of 15 years to life cannot be recalled under section 1170.91. McNeil maintains however, that her four-year middle term for the enhancement is subject to recall and resentencing. As we will explain, we find it unnecessary to attempt to answer the question of whether a determinate term imposed on an enhancement, which is attached to an indeterminate term for the offense is separately eligible for recall. While the question has yet to be answered by the courts, this is not the case to answer the question. McNeil's petition and the record of the original trial show that McNeil's mitigating factors do not arise as a result of her military service but arise from classic domestic violence by a spouse. Further, the domestic violence and implications from battered woman syndrome were before the sentencing court and the court declined to impose the upper term of 10 years as recommended by the probation officer, imposing the four-year middle term instead. Thus, even if the sentence on the enhancement might be subject to recall, McNeil has not demonstrated she is a person who would be eligible for relief.
DISCUSSION
I
Background
At her trial in 1996, McNeil introduced substantial evidence of physical and sexual abuse by her first and second (the victim in the murder case) husbands. At the time of the abuse, McNeil was a Marine, as were each of her husbands. She introduced records of treatment for her injuries and investigations done by the military. An expert witness testified McNeil suffered from battered woman syndrome.
Following her conviction, the probation officer's report contained a full discussion of McNeil's treatment by the victim and her prior husband and its role as a mitigating factor. However, the probation officer recommended the upper term of 10 years for the firearm enhancement. The trial court imposed the four-year middle term.
Effective January 1, 2019, Assembly Bill No. 865 amended section 1170.91 as follows:
"(a) If 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 his or her military service, the court shall consider the circumstance as a factor in mitigation when imposing a term under subdivision (b) of Section 1170. This consideration does not
preclude the court from considering similar trauma, injury, substance abuse, or mental health problems due to other causes, as evidence or factors in mitigation.
"(b) (1) 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."
II
Legal Principles
When we interpret the statute in this case in order to assess eligibility for relief we will apply a de novo, or independent judgment, standard of review. (Lexin v. Superior Court (2010) 47 Cal.4th 1050, 1072.)
Section 1170.91 applies to terms imposed under section 1170, which is the determinate sentencing statute. Where the imprisonment is selected for a term of years from a set of three possible terms, a sentence imposed under such statute is a determinate term. (§ 1170, subd. (b); People v. Felix (2000) 22 Cal.4th 651, 654.)
Indeterminate terms, such as the term imposed here for the murder offense, are imposed under section 1168, subdivision (b). (People v. McGahuey (1981) 121 Cal.App.3d 524.) As we have noted, McNeil concedes section 1170.91 does not apply to her indeterminate term.
Separate from the issue of determinate versus indeterminate terms, the statute establishes certain requirements before it can be invoked to recall a sentence. First, the sentence must have been imposed prior to 2015, the date of the original version of the statute. Second, the person must show that she "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." (§ 1170.91, subd. (b)(1), italics added.)
Finally, the defendant must show the problems arising from military service were not considered as a factor in mitigation at the time of sentencing. (§ 1170.91, subd. (b)(1)(A), emphasis added.)
III
Analysis
Even assuming the determinate term of an enhancement, attached to an indeterminate sentence for the underlying offense is subject to recall, McNeil has not met her burden to show her historical injuries arise from her military service and that they were not considered by the trial court as a mitigating factor. She cannot carry her burden on this record.
Although McNeil and her abusing spouses were Marines, there is literally nothing to connect her condition to military service. She has offered nothing other than the violent conduct of her two husbands toward her in their respective marital relationships. She has not alleged a single fact to connect her mistreatment to her military service. The mere fact that she and her successive husbands were members of the Marine Corps does not even hint that their collective membership in that institution contributed to her mistreatment. She did not make such showing here or in the trial court.
Nor has McNeil carried her burden to show the trial court did not consider her abuse. The court was fully aware of her circumstances, both from the trial and from the probation report. The fact the court, fully informed of the facts, rejected the probation officer's recommendation for an aggravated term for the enhancement supports an inference the court found her traumatic circumstances were a mitigating factor. McNeil has not obtained a copy of the transcript of her 1996 sentencing. There is nothing in the material submitted with this petition that would negate the inference the trial court found the abuse McNeil received to be a mitigating factor.
It is McNeil's burden to show she comes within the eligibility requirements of the statute. (People v. Coley (1997) 52 Cal.App.4th 964, 972.) --------
We are satisfied that any error by the court in the analysis of whether the enhancement could be recalled was harmless by any standard.
DISPOSITION
The order denying McNeil's petition to recall her sentence is affirmed.
HUFFMAN, Acting P. J. WE CONCUR: HALLER, J. O'ROURKE, J.