Opinion
H050648
06-25-2024
THE PEOPLE, Plaintiff and Respondent, v. ROBERT O'NEAL BROWN, Defendant and Appellant.
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC775766
DANNER, J.
In 2008, a jury convicted appellant Robert O'Neal Brown of two crimes: sexual penetration of a child under the age of 10 and continuous sexual abuse. (Pen. Code §§ 288.7, subd. (b), 288.5, subd. (a).) The trial court sentenced Brown to an indeterminate term of 15 years to life consecutive to a determinate term of 16 years and ordered him to register as a sex offender pursuant to section 290.
Unspecified statutory references are to the Penal Code.
In April 2022, Brown unsuccessfully petitioned for recall of his sentence and resentencing under section 1170.91, which provides for resentencing of some convicted persons who have served in the United States military and who can demonstrate specified harms arising from their service. (§ 1170.91, subd. (b).)
Brown appealed from the trial court's November 2022 order denying his petition. Brown's appellate counsel filed a brief under People v. Serrano (2012) 211 Cal.App.4th 496 (Serrano), and Brown personally filed a brief. This court subsequently requested and received supplemental briefing on the relevance of a statutory change to section 1170.91 that took effect January 1, 2023.
Having considered the supplemental briefing, the issues Brown has personally raised, and the record, we decide Brown is ineligible for section 1170.91 relief because of the newly enacted subdivision (c) (section 1170.91(c)). That subdivision states that section 1170.91 "does not apply to a person convicted of, or having one or more prior convictions for, an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of [s]ection 667 or an offense requiring registration pursuant to subdivision (c) of [s]ection 290." We decide the subdivision applies to Brown's petition, and his convictions meet its criteria precluding relief. We are not persuaded by Brown's remaining arguments and therefore affirm the trial court's order denying his petition.
I. FACTS AND PROCEDURAL BACKGROUND
In 2007, the Santa Clara County District Attorney charged Brown with sexual offenses against his granddaughter, Skye Doe, that took place during the period from January 2007 through June 2007, when Skye was nine years old. In 2008, a jury found Brown guilty of one count of sexual penetration of a child 10 years of age or younger (§ 288.7, subd. (b); count 3) and continuous sexual abuse of a child under the age of 14 (§ 288.5, subd. (a); count 4). The jury did not reach a verdict on two charges-sexual intercourse or sodomy with a child 10 years of age or younger (§ 288.7, subd. (a); count 1) and oral copulation with a child 10 years of age or younger (id., subd. (b); count 2), and the trial court granted a mistrial as to those counts.
We take this background information from the record on appeal and the prior opinion issued by this court affirming the judgment. On our own motion, we take judicial notice of the unpublished opinion, People v. Brown (Feb. 2, 2011, H033660). (See Evid. Code, §§ 452, subd. (d), 459.)
The sentencing hearing took place on December 5, 2008. The trial court sentenced Brown to a prison term of 15 years to life on count 3, consecutive to 16 years on count 4. The court ordered Brown to register as a sex offender pursuant to section 290.
On direct appeal, this court affirmed the judgment in an opinion filed in 2011. (People v. Brown (Feb. 2, 2011, H033660) [nonpub. opn.].)
In April 2022, Brown filed a petition for recall of sentence under section 1170.91. In a written order, the trial court denied the petition as to count 3, deciding that Brown was statutorily ineligible for resentencing under section 1170.91 because the sentence for that count was imposed as an indeterminate term. The court appointed counsel to assist Brown in "pursuing resentencing" on count 4 and set a briefing schedule. The court received briefing from Brown himself, Brown's postconviction counsel, and the district attorney.
It appears that Brown filed two additional petitions, one under former section 1170.03 (current section 1172.1) and one under former sections 1171 and 1171.1 (current sections 1172.7 and 1172.75). The trial court in a written order filed in September 2022 denied those petitions, ruling that Brown was statutorily ineligible for the relief requested. Brown has not appealed from the denial of those petitions.
Brown's postconviction counsel in the trial court argued that Brown served in the United States Air Force, has been diagnosed with anxiety and mood disorders that are service-related, is statutorily eligible for relief under section 1170.91, and is entitled to a resentencing hearing "at which the [c]ourt considers relevant resentencing evidence." On November 16, 2022, the court held a hearing on the petition, at which Brown was personally present, and took the matter under submission.
In the briefing Brown personally filed in this court, Brown asserts the hearing lasted for only a few minutes, and he did not personally speak or have the opportunity to present evidence. In light of our conclusion that Brown is statutorily ineligible for section 1170.91 relief, we decide Brown cannot show prejudicial harm from his inability to personally address the court at the hearing (and do not reach the question whether any error thereby occurred).
On November 21, 2022, the trial court filed a written order denying Brown's request for resentencing. The trial court reiterated that Brown was statutorily ineligible for resentencing on count 3 because section 1170.91 "only applies to determinate terms imposed under section 1170, subdivision (b)," and Brown was sentenced to an indeterminate term of 15 years to life on that count.
As to count 4, the trial court acknowledged that Brown was sentenced on that count to a determinate term, and the court had the authority to grant section 1170.91 relief. Nevertheless, exercising its discretion, the court declined to resentence Brown. It stated, "As the sentencing court, this court heard all of the evidence at trial and considered both the offense and the offender during sentencing. Even considering [Brown]'s military service and post-traumatic stress disorder diagnosis, the court would still sentence [Brown] to the upper term on count four. As explained at sentencing, the court imposed the upper term 'because of the fact that [Brown] violated a duty he had towards his granddaughter and the position of trust and confidence, and also because the victim was particularly vulnerable.' [Citation.] Accordingly, the petition is denied as to count four." Brown filed a timely notice of appeal of the trial court's order.
The bench officer who adjudicated Brown's section 1170.91 petition also presided over his original trial.
This court appointed counsel to represent Brown on appeal. Brown's appointed appellate counsel filed a brief pursuant to Serrano, supra, 211 Cal.App.4th 496, and People v. Delgadillo (2022) 14 Cal.5th 216 raising no issues. Thereafter, we notified Brown that he could submit a supplemental brief on his own behalf within 30 days.
Brown personally filed a supplemental brief. In his supplemental brief, Brown states that he meets the criteria for resentencing under section 1170.91. He asserts "[e]ver since military service in Vietnam, [he] has had problems with PTSD, substance abuse and mental health problems." Brown contends the "entire purpose" of section 1170.91 is resentencing and therefore he should be resentenced. Brown notes that section 1170.91 was amended in 2023 to "eliminate[] resentencing for persons who must register under [section] 290." Brown argues this legislative change is "discriminatory and prejudicial, showing hateful outcasting [sic] in the law of anyone convicted of a sex offense, when many crimes are far worse, but are able to participate in lawful changes for relief." Brown asks this court to "investigate all of the Bills presented and passed which eliminate [section] 290 registrants, and hold that such eliminations are unconstitutional."
This court requested simultaneous supplemental briefing on whether the amendments to section 1170.91 that became effective on January 1, 2023 (Sen. Bill No. 1209 (2021-2022 Reg. Sess.) (Stats. 2022, ch. 721, § 1), are relevant to this court's review of the trial court's order. We have received and reviewed that supplemental briefing, which we summarize below.
II. DISCUSSION
Section 1170.91(c) -added in the amendments to section 1170.91 effective January 1, 2023-precludes relief for Brown for two independent reasons. Section 288.7 is a "serious or violent felony offense punishable in California by life imprisonment." (§ 667, subd. (e)(2)(C)(iv)(VIII); § 1192.7, subd. (c)(7) [defining" 'serious felony'" as "any felony punishable by death or imprisonment in the state prison for life"]; People v. Cornett (2012) 53 Cal.4th 1261, 1263 ["Penal Code section 288.7 makes it a felony, punishable by an indeterminate life term, for any adult to engage in specified sexual conduct 'with a child who is 10 years of age or younger.' "].) He was therefore convicted of "an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of [s]ection 667." (§ 1170.91(c).) Further, Brown was also convicted of two "offense[s] requiring registration pursuant to subdivision (c) of [s]ection 290." (§ 1170.91(c); see § 290, subd. (c)(1) [stating persons convicted of, inter alia, sections 288.7 and 288.5 "shall register"].)
This subdivision provides that section 1170.91 "does not apply to a person convicted of, or having one or more prior convictions for, an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or an offense requiring registration pursuant to subdivision (c) of Section 290."
Brown argues, however, that section 1170.91(c) does not apply to him because the subdivision was enacted after the trial court denied his petition and section 1170.91(c) "is not retroactive." (Boldface omitted.) The Attorney General counters that the amendments to section 1170.91 (including section 1170.91(c)) apply to all pending petitions for resentencing, including those pending on appeal as of January 1, 2023.
Unless we specify that Brown has personally made an argument, all further references to Brown's arguments in this court have been made on Brown's behalf by his appellate counsel.
We first consider the applicability of section 1170.91(c) to Brown's petition. "The proper interpretation of a statute is a question of law we review de novo." (People v. Lewis (2021) 11 Cal.5th 952, 961.)"' "[W]e review the ruling, not the court's reasoning and, if the ruling was correct on any ground, we affirm." '" (People v. Brooks (2017) 3 Cal.5th 1, 39.)
The application of the recent amendments to section 1170.91 to individuals like Brown who originally filed petitions prior to the most recent amendments to the statute was considered by the Fourth District, Division 1 in People v. Sherman (2023) 91 Cal.App.5th 325 (Sherman). We borrow from that court's exposition of the relevant statutory history.
"Section 1170.91 was enacted in 2014. The original statute merely required courts to consider as a mitigating factor for determinate sentencing certain specified qualifying conditions the defendant may be suffering as a result of his or her military service- sexual trauma, traumatic brain injury, post-traumatic stress disorder, substance abuse, or mental health problems. (Former § 1170.91, added by Stats. 2014, ch. 163, § 2, eff. Jan. 1, 2015; People v. Stewart (2021) 66 Cal.App.5th 416, 422-423 [].) As amended, this sentencing provision is now contained in section 1170.91, subdivision (a).
"In 2018, the Legislature added subdivision (b) to section 1170.91. Subdivision (b) authorizes retrospective relief for previously sentenced criminal defendants who may suffer from one of the qualifying conditions as a result of their military service. As originally enacted, subdivision (b) allowed a defendant who was sentenced before January 1, 2015, to petition the court for a recall of the sentence and request resentencing 'pursuant to subdivision (a)' if his or her qualifying condition 'was not considered as a factor in mitigation at the time of sentencing.' (Former § 1170.91, subd. (b)(1)(A), as amended by Stats. 2018, ch. 523, § 1, eff. Jan. 1, 2019.) Like subdivision (a), subdivision (b) originally applied only to defendants who were eligible for determinate sentences. [Citation.]
"In 2022, the Legislature amended the statute again. (Stats. 2022, ch. 721, § 1, eff. Jan. 1, 2023.) The 2022 amendment both expanded and restricted eligibility for relief. In relevant part, it expanded subdivisions (a) and (b) to include those serving indeterminate sentences; it eliminated the requirement that the defendant must have been sentenced before January 1, 2015 to be eligible for resentencing; and it added a provision explicitly stating that subdivision (b) 'shall apply retroactively' (§ 1170.91, subd. (b)(10)). At the same time, however, it restricted eligibility by adding subdivision (c), a carve-out provision stating that '[t]his section does not apply to a person convicted of, or having one or more prior convictions for, an offense specified in clause (iv) of paragraph (C) of paragraph (2) of subdivision (e) of [s]ection 667 or an offense requiring registration pursuant to subdivision (c) of [s]ection 290.' (§ 1170.91, subd. (c).) These changes became effective on January 1, 2023." (Sherman, supra, 91 Cal.App.5th at pp. 329330.)
Because they went into effect on January 1, 2023, we refer to these amendments as the "2023 amendments," although they were in fact enacted in 2022.
In 2022, when Brown filed his petition and when the trial court held the evidentiary hearing, the operative version of section 1170.91, subdivision (b) permitted resentencing of "defendants who were eligible for determinate sentences." (Sherman, supra, 91 Cal.App.5th at p. 329.) The 2023 amendments to the statute (which went into effect after the trial court denied Brown's petition) removed that limitation. These amendments extended the possibility of relief to individuals subject to indeterminate terms. However, they also added the additional carve out for individuals convicted of a sex offense that now appears in section 1170.91(c). (Sherman, at pp. 329-330.)
Brown's argument against application of section 1170.91(c) hinges on the presence of an explicit reference to retroactivity in subdivision (b) and the absence of such a reference in subdivision (c). Brown contends, "Section 1170.91 is clear and unambiguous: subdivision (b) was made retroactive following passage of [Senate Bill No.] 1209, while subdivision (c) was added as a separate subdivision without an express retroactivity clause. Thus, subdivision (c) is not retroactive."
We agree that current subdivision (b), which broadens the class of persons eligible for relief, is retroactive. "It is well settled that a new statute is presumed to operate prospectively absent an express declaration of retrospectivity or a clear indication that the electorate, or the Legislature, intended otherwise." (Tapia v. Superior Court (1991) 53 Cal.3d 282, 287.) Subdivision (b) contains such an express declaration and therefore operates retroactively.
The difficulty for Brown's argument is that applying subdivision (c) to him- which operates differently from subdivision (b)-is not a retroactive application of the statute. As the court in Sherman explained," 'The repeal of a statutory right or remedy . . . presents entirely distinct issues from that of the prospective or retrospective application of a statute.' [Citation.] 'Where, as here, the Legislature has conferred a remedy and withdraws it by amendment or repeal of the remedial statute, the new statutory scheme may be applied to pending actions without triggering retrospectivity concerns ....' [Citation.] This rule also applies to a partial repeal of an existing statutory right or remedy. [Citation.]' "The justification for this rule is that all statutory remedies are pursued with full realization that the [L]egislature may abolish the right to recover at any time." '" (Sherman, supra, 91 Cal.App.5th at pp. 330-331.)
Brown contends Sherman was wrongly decided. Brown argues that the court in Sherman violated basic tenants of statutory construction in determining legislative intent. The Sherman court explicitly rejected the argument that its analysis contravened the intent of the Legislature. With respect to general legislative intent, it observed "the partial repeal of a remedial statute does not trigger retroactivity concerns if no rights have vested; the partial repeal then applies prospectively to pending cases as a matter of law. [Citation.] Sherman's contrary interpretation would defeat the Legislature's purpose by affording relief to defendants the Legislature has now decided should be categorically ineligible-such as Sherman himself." (Sherman, supra, 91 Cal.App.5th at p. 332.) Because the defendant was asserting a purely statutory right to be resentenced, he had no vested right to resentencing, and the appellate court was required to apply the current version of section 1170.91 in resolving his appeal, "including the carve-out in subdivision (c)." (Sherman, at p. 332.)
The Sherman court found further support for this interpretation in the amendments' legislative history, noting that the language that now appears in subdivision (c) of section 1170.91 was originally in subdivision (b) and moved for reasons unrelated to retroactivity. The legislative history "suggests that the expansion of the statute to include indeterminate sentences was directly linked to its restriction to exclude superstrike offenses and offenses requiring registration as a sex offender." (Sherman, supra, 91 Cal.App.5th at p. 333.) Further, the Legislature sought to" '" 'ensure equal treatment of all veterans,'" '" which would be defeated by inconsistent applications of the retroactivity provision. (Ibid.)
We agree with Sherman's resolution of the application of section 1170.91(c) to petitions currently pending on appeal and decide Brown is statutorily ineligible for relief.
We also reject Brown's contention that application of section 1170.91(c) to his petition raises ex post facto concerns. Section 1170.91 does not affect criminality or punishment but instead is a remedial statute. It allows for relief for some individuals, otherwise lawfully convicted, who have served in the military and experienced military-related harms. Repeal of postconviction relief of this type does not violate the ex post facto clause.
The Second District Court of Appeal recently rejected an ex post facto challenge to section 1172.6, a statute that also provides for postconviction relief. The court's discussion of the ex post facto inquiry in that context is equally apt for section 1170.91(c).
Like section 1170.91, "[s]ection 1172.6 does not fall into any of the four traditional categories of ex post facto laws established by the United States Supreme Court: (1) It does not impose punishment for an act which was not punishable at the time it was committed; (2) It does not aggravate a crime or make it greater than it was when committed; (3) It does not impose a greater punishment for a crime than when the crime was committed; and (4) It does not' "alter[] the legal rules of evidence, [or] receive[] less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender."' [Citations.] Indeed, as our Supreme Court has observed, preventing unforeseeable punishment is 'one of the primary purposes of the ex post facto clause.'" (People v. Hill (2024) 100 Cal.App.5th 1055, 1067.) Section 1170.91 does not operate in any of the ways found violative of the ex post facto clause.
In arguing applying section 1170.91(c) to him would violate the ex post facto clause, Brown relies on People v. Perez (1998) 68 Cal.App.4th 346. In Perez, the Court of Appeal determined that a new statute that provided for deferred entry of judgment instead of diversion operated prospectively only and therefore did not apply to the defendant, who had committed his crimes before the statute went into effect. (Id. at p. 353.) As support for its statutory reading, the Court of Appeal observed that application of the deferred entry of judgment to the defendant would "arguably violate[] the constitutional prohibition against ex post facto laws." (Id. at p. 354.) In reaching this conclusion, the Court of Appeal analogized diversion to probation, which it characterized as" 'an alternative form of punishment.'" (Id. at p. 355.) The discussion of the ex post facto clause in Perez is both dicta and inapplicable to section 1170.91.
Section 1170.91 does not impose punishment. It provides postconviction relief to some individuals lawfully convicted and punished in accordance with the laws in effect at the time they committed their crimes. Resentencing under section 1170.91 is a voluntary process initiated by a petitioner, which does not result in additional punishment.
For these reasons, we decide that application of section 1170.91(c) to Brown does not raise ex post facto concerns.
We are not persuaded by the remaining arguments Brown personally raises in this appeal. In addition to the points we have considered and rejected above, Brown argues that denial of section 1170.91 relief to anyone required to register under section 290 is "discriminatory and prejudicial, showing hateful outcasting [sic] in the law of anyone convicted of a sex offense, when many crimes are far worse, but are able to participate in lawful changes for relief." We understand this argument to be a challenge to section 1170.91(c) as violative of the equal protection clause. In analyzing this argument, we apply well-settled principles.
"The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution provides that no state may 'deny to any person within its jurisdiction the equal protection of the laws.' (U.S. Const., 14th Amend.) This provision is 'essentially a direction that all persons similarly situated should be treated alike.' [Citation.] 'At core, the requirement of equal protection ensures that the government does not treat a group of people unequally without some justification.' [Citation.] [¶] The degree of justification required to satisfy equal protection depends on the type of unequal treatment at issue. Courts apply heightened scrutiny when a challenged statute or other regulation involves a suspect classification such as race, or a fundamental right such as the right to vote, and accordingly will demand greater justification for the differential treatment. [Citation.] But when a statute involves neither a suspect classification nor a fundamental right, the 'general rule is that legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest.' [Citations.] A court applying this standard finds 'a denial of equal protection only if there is no rational relationship between a disparity in treatment and some legitimate government purpose.'" (People v. Hardin (2024) 15 Cal.5th 834, 847, fn. omitted (Hardin).)
Rational basis review applies to Brown's claim. (See Hardin, supra, 15 Cal. 5th at p. 847 [stating "rational basis review applied to evaluate constitutionality of law prescribing different collateral consequences for different types of criminal convictions"].) "When plaintiffs challenge laws drawing distinctions between identifiable groups or classes of persons, on the basis that the distinctions drawn are inconsistent with equal protection, courts no longer need to ask at the threshold whether the two groups are similarly situated for purposes of the law in question. The only pertinent inquiry is whether the challenged difference in treatment is adequately justified under the applicable standard of review. The burden is on the party challenging the law to show that it is not." (Id. at pp. 850-851.)
"Rational basis review 'sets a high bar' for litigants challenging legislative enactments. [Citation.] The reasons for this lie at the heart of our democratic system of governance.... [¶] Under this deferential standard, we presume that a given statutory classification is valid 'until the challenger shows that no rational basis for the unequal treatment is reasonably conceivable.' [Citation.] The underlying rationale for a statutory classification need not have been 'ever actually articulated' by lawmakers, nor 'be empirically substantiated.' [Citation.] . . . 'If a plausible basis exists for the disparity, courts may not second-guess its" 'wisdom, fairness, or logic.'"' [Citation.] '[T]he logic behind a potential justification need [not] be persuasive or sensible - rather than simply rational.'" (Hardin, supra, 15 Cal.5th at p. 852.)
Brown has not met his burden of showing that" 'no rational basis for the unequal treatment is reasonably conceivable.'" (Hardin, supra, 15 Cal.5th at p. 852.) He states, without citation to authority or other elaboration, that individuals who commit crimes that are "far worse" are eligible for relief while sex offenders are not.
The legislative history of the 2023 amendments to section 1170.91 demonstrate that with the amendments the Legislature generally sought to" 'ensure that veterans that have experienced trauma related to their military service are provided with [] sentencing mitigation and resentencing opportunities." (Assem. Off. of Research, 3d reading analysis of Sen. Bill. No. 1209 (2021-2022 Reg. Sess., May 19, 2022, p. 1.) The major provisions in the amendments to section 1170.91 were: (1) deleting the requirement that persons eligible for resentencing must have been sentenced prior to January 1, 2015; (2) specifying that persons convicted by jury or plea agreement were eligible for relief; (3) extending relief to persons sentenced to indeterminate sentences; and (4) specifying that "special considerations of military service-related trauma in sentencing and resentencing do not apply to a person who has a prior conviction for an offense requiring sex offender registration or for a 'super strike' offense." (Ibid.)
The legislative history of the 2023 amendments thus evinces multiple purposes. Although most of the changes worked to enlarge the groups of veterans legally entitled to relief, the Legislature elected to exclude a narrow class of veterans convicted of offenses which the Legislature implicitly found to be so serious that relief should be unavailable to them. This legislative decision does not raise an equal protection violation. (Hardin, supra, 15 Cal.5th at p. 853 [" 'It is both the prerogative and the duty of the Legislature to define degrees of culpability and punishment, and to distinguish between crimes in this regard.' "].)
"Legislation is frequently the' "product of multiple and somewhat inconsistent purposes that led to certain compromises."' [Citations.] This is only to be expected, for '[d]eciding what competing values will or will not be sacrificed to the achievement of a particular objective is the very essence of legislative choice.' [Citation.] 'Past cases establish that the equal protection clause does not preclude a . . . legislative measure that is aimed at achieving multiple objectives, even when such objectives in some respects may be in tension or conflict.'" (Hardin, supra, 15 Cal.5th at p. 854.)
We decide the Legislature had a plausible basis for excluding sex offenders and those convicted of "super strikes" from section 1170.91, and Brown has not shown that his rights to equal protection have been violated.
Finally, Brown asks us to investigate "all of the Bills presented and passed which eliminate [section] 290 registrants and hold that such eliminations are unconstitutional." We decline to do so we because such an analysis would constitute an improper advisory opinion. (See Hunt v. Superior Court (1999) 21 Cal.4th 984, 998; Huff v. Securitas Security Services USA, Inc. (2018) 23 Cal.App.5th 745, 764.)
Having reviewed the record and having considered the brief Brown personally filed as well as the supplemental briefing requested in this case, we find no error in the denial of section 1170.91 relief to Brown.
III. DISPOSITION
The November 21, 2022 order denying Brown's petition for recall and resentencing pursuant to Penal Code section 1170.91 is affirmed.
WE CONCUR: Bamattre-Manoukian, Acting P. J., Bromberg, J.