Military Resentencing (1170.91) - Stipulated Sentence?

California Penal Code § 1170.91(b)(1), codifying Assembly Bill (AB) 865, allows a military veteran currently serving a sentence after being convicted of a felony who may be suffering from certain kinds of trauma (including PTSD and substance abuse) caused by his or her military service to petition for a recall of his or her sentence to be resentenced pursuant to 1170.91(a). The sentencing date must be before January 1, 2015, not after.

Subsection (a) of 1170.91, in turn, provides that “when imposing a term under subdivision (b) of Section 1170 [a determinate term, not an indeterminate term],” the trial court may consider such service-connected trauma as a mitigating factor (§ 1170.91(a).”

However, a person who was given a stipulated sentence pursuant to a plea agreement is not eligible for resentencing under § 1170.91. People v. King (2020) 52 Cal. App. 5th 783, 790 - 794. It merits mention for the reader that most plea agreements do include a specified term of probation, jail or prison. Otherwise, such a plea is a “plea in the open” that then allows the judge to sentence defendant.

The court in King acknowledged that “[T]he statute expressly states that a resentencing hearing is available to a defendant who was sentenced after entering into a plea,” however, if the plea included an agreed-upon sentence (that defendant agreed to) the court could not resentence him.

This limitation of AB 865 applies to a great deal of military veterans who would otherwise appreciate being resentenced and has inspired creative attempts to persuade judges to resentence defendants nonetheless. For example, in People v. Brooks (2020) 58 Cal. App. 5th, defendant asked the judge to follow Harris v. Superior Court (2016) 1 Cal. 5th 984, wherein the California Supreme Court ruled that because Proposition 47 (reclassifying certain low level drug felonies and certain low level felony theft offenses as misdemeanors) applied to a person serving a sentence “whether by trial or by plea,” a defendant sentenced pursuant to a plea bargain with a stipulated term was still entitled to resentencing under Prop 47. Brooks, supra, at 1105; Harris, supra, at pp. 991 – 992.

Likewise, in People v. Stamps (2020) 9 Cal. 5th 685, the California Supreme Court held that a defendant sentenced pursuant to a plea bargain with a stipulated term was entitled to seek resentencing under Penal Code § 1385 as amended by Senate Bill 1393 (permitting a judge to remove a five-year sentence enhancement for person convicted of a serious felony who has a prior serious felony conviction). Moreover, on remand, the trial court could withdraw its approval of the plea. Stamps, supra, at 704-709.

This background on AB 865, also known as Penal Code § 1170.91(b) or Military Resentencing, is helpful for understanding the appeal of Taylor James Pixley to the Fourth Appellate District.

In 2005, pursuant to a plea agreement with a stipulated sentence, Pixley pleaded guilty to six counts of a forcible lewd act on a child under age 14 (Penal Code § 288(b)). In exchange, the prosecution dismissed twelve counts of a nonforcible lewd act on a child under 14 (Penal Code § 288(a)), as well as multiple victim sentencing allegations (former Penal Code § 667.61(e)(5); see now Penal Code § 667.61(e)(4)).

The plea bargain provided for a sentence of 36 years in state prison (the midterm of six years on each count, run consecutively). The Riverside County judge assigned to the case then sentenced Pixley accordingly.

Penal Code § 1170.91 went into effect January 1, 2019. Later in 2019, Pixley filed a petition for resentencing under 1170.91. He alleged that he had served in the U.S. Navy and that he suffered from post-traumatic stress disorder (PTSD) and substance abuse as a result.

In 2020, the trial court denied the petition because the plea bargain had a stipulated sentence.

Pixley then appealed to the Fourth Appellate District in Riverside, arguing that Brooks, supra, Harris, supra, and Stamps, supra, should apply to let the judge resentence him.

The Fourth Appellate Court disagreed, explaining that in the case of Proposition 47 and SB 1393, the Legislature specifically held in its passage of these new laws that the change in the law would apply to all convictions, final or nonfinal, whether suffered by trial or plea, because the legal basis for the conviction or sentence had been changed.

In contrast, Penal Code § 1170.91 does not change the legal basis for the convictions Pixley suffered or the legal basis for his sentence. Section 1170.91 only permits the judge to consider certain mitigating factors and only insofar as the judge is otherwise permitted to exercise discretion in the selection of a low, middle or high term within the applicable sentencing triad.

We present this summary because we have spoken with many potential clients and families of potential clients serving time in prison who are unaware of this significant exception to resentencing under AB 865.

The citation for the Fourth Appellate District Court ruling discussed above is People v. Taylor James Pixley (4th App. Dist., 2021) 75 Cal. App. 5th 1002, 290 Cal. Rptr. 3d 872.

For more information about resentencing for military veterans, also known as Assembly Bill (AB) 865 and Penal Code § 1170.91(b), please click on the following articles: