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Military Law,

Jan. 6, 2022

Incarcerated veterans now permitted to request lower sentences

What appellate courts have said about Penal Code Section 1170.91

4th Appellate District, Division 3

Eileen C. Moore

Associate Justice, California Courts of Appeal

In a former life, Justice Eileen Moore served as a combat nurse in Vietnam in the Army Nurse Corps. She was awarded the Vietnam Service Medal, the National Defense Service Medal and the Cross of Gallantry with Palm. She is a member of Vietnam Veterans of America. Since 2008, she has chaired the Judicial Council' Veterans and Military Families Subcommittee. She is a member of the American Bar Association's Standing Committee on Armed Forces Law, is an advisor to the California Lawyers Association's Military and Veterans Committee and the Orange County Veterans & Military Committee as well as a founding member of USVets' Women's Advisory Committee. She is the author of two award-winning books, Race Results and Gender Results.

The U.S. Supreme Court says courts should consider a criminal defendant's military history. Noting a California statute beneficial to veterans in a footnote in Porter v. McCollum, 558 U.S. 30 (2009), the nation's highest court granted habeas corpus relief after a Florida court reduced a defendant's military service to "inconsequential proportions." The Supreme Court stated: "Our Nation has a long tradition of according leniency to veterans in recognition of their service, especially for those who fought on the front lines as Porter did. Moreover, the relevance of Porter's extensive combat experience is not only that he served honorably under extreme hardship and gruesome conditions, but also that the jury might find mitigating the intense stress and mental and emotional toll that combat took on Porter."

California has advanced that notion by permitting incarcerated veterans to return to court to allege their military service caused certain conditions and ask for a lower sentence. This article will discuss Penal Code Section 1170.9 and some of the published opinions concerning veterans' quests to seek lower sentences.

Penal Code Section 1170.91

For many years, sentencing courts have been required to consider a veteran's military-related conditions as a factor in favor of granting probation. But as of January 1, 2015, under Penal Code Section 1170.91, even when probation is denied, sentencing courts must consider a former or current service member's sexual trauma, traumatic brain injury, post-traumatic stress disorder, substance abuse or mental health problems that may be a result of his or her military service as a factor in mitigation when imposing a determinate prison sentence. Penal Code Sections 1170 (b), 1170.9, 1170.91.

Concerns arose because many veterans suffering from those conditions were already in prison when Section 1170.91 went into effect. Thus, an amendment was enacted. As of January 1, 2019, veterans who were sentenced prior to 2015 were permitted to request resentencing if the condition was not considered as a factor in mitigation at the time of sentencing.

Once that amendment went into effect, opinions on Section 1170.91 flowed from appellate courts as imprisoned veterans sought lower sentences. Here are a few takeaways involving incarcerated veterans suffering from one or more of the conditions set forth in the statute, which conditions were not considered by the original sentencing court when defendant was sentenced.

Sentencing court "shall" consider a veteran/defendant's qualifying condition

A defendant's case was remanded for resentencing because the original sentencing judge, while aware of defendant's military service and related mental health issues, was apparently unaware of the court's duties when a defendant is a veteran. The Court of Appeal held the sentencing court was required to consider defendant's military circumstances, "as a mitigating factor in both evaluating whether to grant probation and in selecting the appropriate determinate term." Penal Code Sections 1170.9, 1170.91; People v. Panozo, 59 Cal. App. 5th 825 (2021).

A reasonable and unsettling inference to be drawn from this case is that, in addition to the court's being unaware of its duties, the prosecutor and the defendant's own lawyer were also unaware of Section 1170.91. Also unsettling is that for years now, every arraignment court in California, "shall inform the defendant that if the defendant is on active duty in the United States military, or is a veteran of the United States military, the defendant may request a copy of the Judicial Council military form that explains those rights and may file that form with the court so that the defendant's active duty or veteran status is on file with the court." Penal Code Section 858; see also Judicial Council form MIL-100. It appears that this veteran was let down throughout his court interactions.

Defendant need not provide evidence that the condition flowed from military service

Another veteran defendant's petition for resentencing under Section 1170.91 was also denied. He had alleged he had two conditions that qualified under the statute, sexual trauma and substance abuse. The trial court found defendant's allegations insufficient because he didn't provide evidence his qualifying condition flowed from military service. The Court of Appeal reversed, stating the statute merely requires that the veteran "may be" suffering from a qualifying condition. The trial court was directed to hold a new hearing. People v. Coleman, 65 Cal. App. 5th 817 (2021).

Defendant must have originally been sentenced to a determinate sentence

A defendant in a case had been sentenced to an indeterminate term, and was thus ineligible under Section 1170.91. He argued there was a possibility he could be resentenced to a determinate term. That argument failed in both the trial court and the Court of Appeal because he was originally sentenced as a third-striker, so the only possible penalty for each of his felony convictions was an indeterminate term of 25 years to life. But under Section 1170.91, the defendant must have received a determinate sentence. The appellate court was not swayed by the defendant's argument a resentencing judge might strike one or more of his strikes. People v. Stewart, 66 Cal. App. 5th 416 (2021).

A sentence is still indeterminate, even if the enhancement is determinate

In one case where the defendant was sentenced to an indeterminate term, he argued that since his one-year enhancement was determinate, he qualified for resentencing. The appeals court acknowledged the enhancement term may be determinate, but clarified that enhancement terms are imposed under a different statute rather than the statute that triggers application of resentencing under Section 1170.91. Penal Code Sections 1170 (b), 1170.1 (d); People v. Estrada, 58 Cal. App. 5th 839 (2020).

Conviction pursuant to plea

In two cases, when the veteran defendants were originally sentenced, it was pursuant to their plea agreement to a specific term of years. When they returned to court to ask for resentencing, the trial court denied their petitions. Section 1170.91 (b) begins: "A person currently serving a sentence for a felony conviction, whether by trial or plea ..." In both cases, the respective Courts of Appeal affirmed denial of relief because the original sentencing judge did not exercise discretion to choose an upper, middle or lower term, so the court never imposed "a term under subdivision (b) of Section 1170" as required by Section 1170.91. People v. King, 52 Cal. App. 5th 783 (2020); People v. Brooks, 58 Cal. App. 5th 1099 (2020).

Petitions for review were denied in both cases. But there is a dissent in Brooks that states: "The majority in my view unjustifiably restricts the applicability of this provision to convictions based on plea agreements that do not specify a term of imprisonment -- undoubtedly a common if not the most common form of plea bargain. Neither the majority here nor the court in People v. King [] identifies anything in the legislative history supporting this restrictive interpretation of the statute."

Sentenced after 2015, but not diagnosed until after sentencing

In this case, a defendant was sentenced in 2016, before he was diagnosed with PTSD. Section 1170.91's provision that permits a defendant to request resentencing requires that the original sentence was prior to 2015. He wasn't eligible under the statute at the time he was sentenced because he had not yet been diagnosed with one of the statute's qualifying conditions. Nor was he eligible under the statute after he was sentenced because his original sentence was after January 1, 2015. Thus, he was left out in the cold. Both the trial court and the Court of Appeal ruled against him. However, the appeals court stated: "In closing, we wonder if the Legislature foresaw this result when it passed section 1170.91. While Valliant's position here may be unusual, we doubt it is unique. With that thought in mind, we invite the Legislature to revisit this issue and, if it believes it is appro

priate to do so, to provide Valliant and any other veteran in a similar position, with statutory relief." When the California Supreme Court denied review in this case, Justice Liu took the unusual step of writing a concurrence to that denial, stating: "I agree with the Court of Appeal that it is unlikely the Legislature specifically intended this result." People v. Valliant, 55 Cal. App. 5th 903 (2020) (stmt. of Liu, J.).

Public hearing

In this situation, a veteran defendant filed a petition for resentencing under Section 1170.91, alleging he met all the statutory requirements. While the case was still in the trial court, with no parties present and no apparent notice to defendant or the prosecution, the court summarily denied defendant's petition. Section 1170.91(b) requires that when the court receives a 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." The Court of Appeal reversed and remanded the case, directing the trial court to comply with the statute. People v. Bonilla-Bray, 49 Cal. App. 5th 234 (2020).


Thus far, appellate courts have held the following about Penal Code Section 1170.91:

• A sentencing court shall consider a defendant's qualifying condition

• A defendant need not provide evidence that the condition flowed from military service; an allegation of the possibility of a qualifying condition is sufficient

• The defendant's original sentence has to be to a determinate sentence

• An indeterminate sentence, even when it includes a determinate enhancement, is still indeterminate and does not qualify under Section 1170.91

• The sentencing court must have exercised discretion in selecting a determinate term for the plea agreement to implicate Section 1170.91's resentencing provision

• A defendant sentenced after January 1, 2015 but not diagnosed with a qualifying condition until after sentencing does not qualify for resentencing under 1170.91

• A hearing to recall a sentence under Section 1170.91 must be a public hearing.


It can be expected that courts will see an increase in requests for lower sentences by incarcerated veterans within the next few years. The reason is that two of three major class actions against the military branches have recently settled.

In April 2021, the U.S. district court in Hartford, Connecticut approved settlement of a class action brought by named plaintiffs Stephen Kennedy and Alicia Carson against the U.S. Army. In October 2021, a class action filed against the U.S. Navy by Tyson Manker and the National Veterans Council for Legal Redress was settled. Another class action was filed in the federal district court in Hartford against the U.S. Air Force on September 13, 2021. Martin Johnson and Jane Doe are the named plaintiffs. Under the two settlements reached thus far in the actions against the Army and Navy, each service will reconsider discharge-status-upgrade decisions made by its discharge review boards.

While the VA won't go into jails and prisons to treat incarcerated veterans, it will go to those facilities to diagnose issues related to military service. That circumstance will be triggered by the incarcerated veteran's filing a claim for service-connected incarcerated benefits.

Thus, if the discharge review boards raise the discharge level of incarcerated veterans in California, it can be expected that veterans incarcerated in California may receive, for the first time, a diagnosis of one or more of the conditions covered under Penal Code Section 1170.91. It can also be expected that those incarcerated veterans will seek lower sentences pursuant to Section 1170.91. 


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