Penal Code section 1170.91 was enacted in 2014 by the California Legislature and mandates the Court to consider trauma resulting from military service as a mitigating factor when exercising determinate sentencing triad discretion under Penal Code section 1170(b). According to the language of the Statute, 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 of imprisonment under Section 1170(b). (Cal. Penal Code section 1170.91(a)).
In 2018, the Legislature amended Penal Code section 1170.91 to add a retroactivity clause and a procedure for resentencing. (People v. Jason Brooks (2020) S.O.S. 6124). According to these amendments, reflected in Subdivision (b) of Section 1170.91, a person currently serving a sentence for a felony conviction, whether by trial or plea, may petition for recall of sentence before the trial court that entered the judgment of conviction in his or her case, to request resentencing pursuant to the provisions in Subdivision (a) of Section 1170.91 if they meet the following conditions:
(1) 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; and
(2) the person was sentenced prior to January 1, 2015.
If these conditions are met, then the Court may resentence the petitioner taking into account any trauma resulting from military service as a mitigating factor. Any resentencing that may occur under this subdivision cannot result in a longer term of imprisonment than the original sentence. (Cal. Penal Code section 1170.91(b)(5).
Subsequent appellate opinions analyzing issues pertaining to resentencing relief under Penal Code section 1170.91 have made clear that Section 1170.91 relief is unavailable to a petitioner who had a sentence imposed pursuant to a plea agreement to a stipulated term of years. (People v. Jason Brooks (2020) S.O.S. 6124).
Call our office now if you believe you or a loved one may qualify for resentencing under the provisions of Penal Code section 1170.91(b)!
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