Opinion
F081741
04-07-2022
THE PEOPLE, Plaintiff and Respondent, v. BRIAN DAVID THACKER, Defendant and Appellant.
Jill M. Klein, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the Attorney General, Sacramento, California, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Kern County. No. BF147978A, John S. Somers, Judge.
Jill M. Klein, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the Attorney General, Sacramento, California, for Plaintiff and Respondent.
OPINION
THE COURT[*]
INTRODUCTION
In October 2015, appellant Brian David Thacker (appellant) pleaded guilty to second degree murder and was sentenced to the second strike term of 30 years to life plus five years, pursuant to a negotiated disposition.
In 2020, appellant filed a petition in the superior court for resentencing pursuant to Penal Code section 1170.91, that provides "[e]ffective January 1, 2015, sentencing courts must consider any trauma, substance abuse, and mental health problems caused by a defendant's service in the United States military as mitigating factors weighing in favor of a low-term sentence," and allows "people sentenced before January 1, 2015, to petition for a resentencing hearing in which the court takes into account mitigating factors related to military service." (People v. Bonilla-Bray (2020) 49 Cal.App.5th 234, 238.) The court denied the petition.
All further statutory citations are to the Penal Code unless otherwise indicated.
On appeal, appellant's appellate counsel has filed a brief which summarizes the facts with citations to the record, raises no issues, and asks this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) We affirm.
At appellant's plea hearing, the parties stipulated to the preliminary hearing transcript and investigative reports as the factual basis for his guilty plea. These documents are not in the instant record. The instant appellate record consists of the reporter's transcript from appellant's plea and sentencing hearings in 2015; the clerk's transcript with the complaint, information, and minute orders leading to appellant's 2015 plea; and the record for appellant's section 1170.91 petition. The facts herein are based on the transcript of appellant's sentencing hearing in 2015, and his declarations in his section 1170.91 petition.
On July 8, 2011, appellant, an inmate at Wasco State Prison, got into an altercation with his cellmate, Clement Rhodes, and killed him.
PROCEDURAL BACKGROUND
On January 14, 2014, an information was filed in the Superior Court of Kern County charging appellant with count 1, first degree premeditated murder of Clement Rhodes (§ 187, subd. (a)), with the special circumstance that the murder was committed by means of lying in wait (§ 190.2, subd. (a)(15)); an enhancement for personal use of a deadly weapon, a strangling cord (§ 12022, subd. (b)(1)); and two prior strike convictions, two prior serious felony enhancements (§ 667, subd. (a)), and two prior prison term enhancements (§ 667.5, subd. (b)).
Plea Proceedings
On October 15, 2015, Judge Somers convened a change-of-plea hearing. Appellant appeared with his deputy public defender, who gave a brief history of the case.
Defense counsel stated that appellant was originally charged with a capital offense, and the public defender's office "achieved a waiver with the People of the death penalty." As the murder case went forward, there were questions about appellant's mental status, and he entered a plea of not guilty by reason of insanity. Counsel said appellant was seen by two state-appointed doctors who had different opinions - one said he was legally insane at the time of the homicide, and the other said he was not.
Counsel further stated that the prosecutor had made a plea offer for 30 years to life plus five years for a prior conviction enhancement. However, counsel stated that he could not agree to stipulate to a factual basis, given the finding by one of the doctors that appellant was legally insane when he committed the homicide. Counsel said that appellant was medicated and much more lucid now. Appellant did not have any difficulty understanding the case, and he wanted to accept the plea offer of 30 years to life plus five years.
Defense counsel said appellant wanted to represent himself pursuant to Faretta v. California (1975) 422 U.S. 806, so he could accept the plea. The court conducted a hearing pursuant to Faretta and determined appellant was lucid, understood the nature and consequences of the criminal proceedings, and was able to represent himself; the court granted his motion.
Thereafter, appellant withdrew his previous plea of not guilty by reason of insanity and pleaded guilty to second degree murder as a lesser included offense. He admitted one prior strike conviction and one prior serious felony enhancement, for a stipulated sentence of 15 years to life, doubled to 30 years to life as the second strike term, plus five years. The court granted the People's motion to dismiss the remaining allegations.
The court found a factual basis for the plea based on the preliminary hearing transcript and investigative reports, and that appellant's plea was knowingly, intelligent, and voluntary.
Sentencing Hearing
On November 12, 2015, Judge Somers held the sentencing hearing. Appellant again represented himself.
The court sentenced appellant to the second strike term of 30 years to life for second degree murder plus five years for the prior serious felony enhancement, consistent with the plea agreement, to be served consecutively to the sentence appellant was already serving.
Appellant did not file an appeal from his conviction and sentence.
SECTION 1170.91The instant appeal is from the superior court's denial of appellant's petition filed pursuant to section 1170.91. "Since 2015, California law has required sentencing courts to consider, as mitigating factors weighing in favor of a low-term determinate sentence, any trauma, substance abuse, and mental health problems caused by a defendant's service in the United States military. [Citations.] In 2018, the Legislature amended section 1170.91 to allow those sentenced for a felony conviction before January 1, 2015, to petition for a resentencing hearing at which the court could consider mitigating factors related to military service." (People v. Estrada (2020) 58 Cal.App.5th 839, 841 (Estrada).)
Subdivision (a) of section 1170.91 states: "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." (Italics added.)
Section 1170.91, subdivision (b)(1) states:
"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." (Italics added.)
Upon receipt of the petition, "the court shall determine, at a public hearing held after not less than 15 days' notice to the prosecution, the defense, and any victim of the offense, whether the person satisfies the criteria in this subdivision." (§ 1170.91, subd. (b)(3).) "At that hearing, the prosecution shall have an opportunity to be heard on the petitioner's eligibility and suitability for resentencing. If the person satisfies the criteria, the court may, in its discretion, resentence the person following a resentencing hearing." (Ibid., italics added.) We review the superior court's sentencing decision under section 1170.91 for an abuse of discretion. (People v. Panozo (2021) 59 Cal.App.5th 825, 837.)
Section 1170.91 only applies to persons serving determinate terms imposed under section 1170, subdivision (b). (Estrada, supra, 58 Cal.App.5th at pp. 842-843.) "The statute governing punishment for murder provides that, with exceptions not applicable here, 'every person guilty of murder in the second degree shall be punished by imprisonment in the state prison for a term of 15 years to life.' [Citation.] … Sentences of life imprisonment and sentences of a number of years to life, such as [a] term for second degree murder [citation], are not subject to the determinate sentencing law [citation]." (Estrada, supra, 58 Cal.App.5th at p. 843.) In addition, section 1170.01, subdivision (b)(1)(B) "unambiguously specifies that its resentencing relief is limited to cases in which '[t]he person was sentenced prior to January 1, 2015.'" (People v. Valliant (2020) 55 Cal.App.5th 903, 269 Cal.Rptr.3d 839, review denied Feb. 17, 2021, republished with additional material at 275 Cal.Rptr.3d 221, review denied Feb. 17, 2021.)
On July 1, 2020, appellant, represented by retained counsel, filed a petition for recall of sentence pursuant to section 1170.91. The petition alleged appellant served in the Army from 1998 to 2002, he suffered various injuries in the Army, and because of his service, he experienced mental health problems, posttraumatic stress disorder, and substance abuse issues. The petition further alleged appellant had been receiving medications for his mental health since 2009 and worked toward his rehabilitation while incarcerated.
The petition was supported by appellant's declaration, that due to his military service, he suffered from mental health problems, posttraumatic stress disorder, and substance abuse issues, and was also supported by his service records, reports from two prison psychologists, and copies of certifications received while incarcerated.
The Court's Denial of the Petition
On July 24, 2020, Judge Somers acknowledged receipt of appellant's petition and granted defense counsel's request for a continuance to transport appellant to the hearing.
On August 10, 2020, Judge Somers held a hearing on appellant's petition. Appellant was present with his attorney. Defense counsel argued appellant clearly met the requirements of section 1170.91 because he suffered from severe PTSD and drug issues at the time of the offense. He had made significant strides, and "he is particularly as a veteran is very - in a strong position to have a recalled sentence of a more appropriate sentence."
The prosecutor referred the court to the opposition she had already filed and asked the court to mark and admit appellant's complete certified Army records as an exhibit. The court granted the motion.
The instant appellate record does not contain the prosecutor's opposition to appellant's section 1170.91 petition. According to a declaration from the superior court, the opposition was never received by the court.
The court stated it had reviewed the documents filed by both parties, including appellant's service record and diagnostic information from state prison. The court acknowledged the seriousness of appellant's condition but denied his petition.
The court stated:
"First of all, [section 1170.91], if applicable, can apply to a conviction by a plea but this is a situation where the plea that was entered was to a charge bearing a specified sentence under law of 15 years to life. And there were previous convictions suffered in this case which increased the sentence.
"In addition to that, this is a situation where the sentencing in this case took place on October 15th of 2015. [Section] 1170.91 … by its terms applies only to those cases where an individual was sentenced before January 1st of 2015 so the timing of the sentencing in [appellant's] case such that the statute is not applicable to him.
"I don't express any opinion on whether a resentencing would or would not be appropriate and I don't gain say what's reflected in the records and psychological reports regarding his condition with being obligated to follow the law, it is clear to me under the terms of … Section 1170.91 itself, the statute, does not apply and permit … resentencing for [appellant] under this particular statute or under those conditions."
On September 14, 2020, appellant filed a notice of appeal from the court's order of August 10, 2020.
DISCUSSION
As noted above, appellant's counsel has filed a Wende brief with this court. The brief also includes the declaration of appellate counsel indicating that appellant was advised he could file his own brief with this court. By letter on March 19, 2021, we invited him to submit additional briefing. He has not done so.
After independent review of the record, we find that no reasonably arguable factual or legal issues exist.
The court properly denied appellant's section 1170.91 petition because section 1170.91 does not apply to persons sentenced to indeterminate terms (Estrada, supra, 58 Cal.App.5th at pp. 842-843), and he was sentenced after January 1, 2015. (People v. Valliant, supra, 275 Cal.Rptr.3d at p. 223.)
DISPOSITION
The order is affirmed.
[*] Before Hill, P. J., Meehan, J. and De Santos, J.