Filed 4/29/20; Certified for Publication 5/21/20 (order attached)




IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                    SECOND APPELLATE DISTRICT

                               DIVISION THREE


THE PEOPLE,                                        B299607

      Plaintiff and Respondent,                    Los Angeles County
                                                   Super. Ct. No. VA119464
      v.

JONATHAN BONILLA-BRAY,

      Defendant and Appellant.



      APPEAL from a postjudgment order of the Superior Court
of Los Angeles County, Roger Ito, Judge. Reversed with
directions.
      Jared G. Coleman, under appointment by the Court of
Appeal, for Defendant and Appellant.
      Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Paul M.
Roadarmel, Jr., and Stephanie A. Miyoshi, Deputy Attorneys
General, for Plaintiff and Respondent.
                           INTRODUCTION

       Defendant Jonathan Bonilla-Bray is a Marine Corps
veteran who alleges that, because of his service, he suffers from
mental health and substance abuse problems. To help veterans
like defendant, since 2015, California law has required trial
courts to consider service-related trauma, substance abuse, and
mental health problems as mitigating factors weighing in favor of
low-term felony sentences. In 2018, the Legislature expanded this
relief to allow people sentenced before 2015 to petition for a
resentencing hearing in which the court considers service-related
mitigating factors. As amended, Penal Code section 1170.91 lays
out eligibility criteria and provides that upon receiving a petition,
the court must hold a public hearing to determine whether the
defendant satisfies those criteria. Defendant contends the trial
court here erred by summarily denying his petition for recall and
resentencing without following the required procedures. The
People properly concede the point, and we agree. We therefore
reverse and remand for further proceedings.

                            BACKGROUND

      By information dated May 27, 2011, defendant was charged
with one count of carjacking (Pen. Code,1 § 215, subd. (a); count 1)
and one count of attempted carjacking (§§ 664/215, subd. (a);
count 2). The information also alleged that he personally used a
firearm in the commission of count 2 (§ 12022.53, subd. (b)).
Defendant pled not guilty and denied the allegation.
      At defense counsel’s request, the court appointed a
psychiatrist to examine defendant. The doctor concluded

1 All   undesignated statutory references are to the Penal Code.




                                     2
defendant suffered from serious mental health issues but was fit
to stand trial.
       On August 16, 2011, defendant pled no contest to count 2
and admitted the allegation. The court sentenced him to state
prison for 12 and a half years—the midterm of two and a half
years for count 2 plus 10 years for the firearm enhancement. In
accordance with the terms of the plea, the court recommended
that defendant receive “psychiatric/psychological treatment” in
state prison. The court dismissed count 1.
       On April 23, 2019, defendant filed a petition for recall of
sentence and resentencing under Assembly Bill No. 865 (2017–
2018 Reg. Sess.) (Stats. 2018, ch. 523, § 1) (hereafter A.B. 865). In
the petition, defendant alleged that he had served in the United
States Marine Corps, where he suffered from both “serious
mental health issues and substance abuse addiction,” and that
his military service “had a substantial and detrimental effect on
his mental health and well being.” Defendant also noted that,
while the charges were pending in his case, a court-appointed
psychiatrist found that he suffered from “serious mental health
issues, but was otherwise fit to stand trial.” And, he said that the
trial court had not considered the effects of his military service as
a factor in mitigation at sentencing, which occurred before
January 1, 2015. Thus, defendant asked the court to resentence
him to the low term for count 2 and to strike the firearm
enhancement using its authority under Senate Bill No. 620
(2017–2018 Reg. Sess.). He requested counsel and the right to be
present at any hearing.
       On May 28, 2019, the court summarily denied what it
called a “petition for recall and resentencing pursuant to SB 620”
without appointing counsel or holding a hearing. The court




                                 3
specifically stated that defendant had “failed to show a prima
facie case for relief” and that he had the burden to “establish
grounds for his release.” The court added, “Specifically,
petitioner’s case became final on or about January 9, 2012, over
5 years prior to the effective date of SB 620. Accordingly, the
claim is denied.” The court did not mention either A.B. 865 or
section 1170.91.
       Defendant filed a timely notice of appeal.

                         DISCUSSION

      Defendant contends that because he filed a petition for
resentencing under section 1170.91 that met the statutory
requirements for relief, the court erred by failing either to
address those claims or to hold a noticed public hearing as
required under subdivision (b)(3) of the statute. The People
concede the error, and we agree.
      This is an issue of statutory interpretation, which we
consider de novo. (People v. Prunty (2015) 62 Cal.4th 59, 71.)
      Effective 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.
(§ 1170.91, subd. (a), enacted by Stats. 2014, ch. 163, § 2.)
A.B. 865 amended that statute to allow 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. (§ 1170.91, subd. (b)(1).)




                                 4
      To be eligible for resentencing, a petitioner must meet the
following criteria:
      ◦   He or she is currently serving a sentence for a
          felony conviction—whether by trial or plea
          (§ 1170.91, subd. (b)(1));
      ◦   He or she served in a branch of the United States
          military (ibid.);
      ◦   As a result of his or her service, he or she suffers
          from sexual trauma, traumatic brain injury, post-
          traumatic stress disorder, substance abuse, or
          mental health problems (ibid.);
      ◦   The court did not consider those circumstances as
          a factor in mitigation at the time of sentencing
          (id., subd. (b)(1)(A)); and
      ◦   He or she was sentenced before January 1, 2015
          (id., subd. (b)(1)(B)).
       Section 1170.91, subdivision (b)(3), in turn, establishes
procedures for the trial courts to evaluate resentencing petitions.
It provides that upon receiving a petition, the court must hold a
public hearing after at least 15 days to determine whether the
defendant meets the statutory criteria. “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 [in subdivision (b)], the court may, in
its discretion resentence the person following a resentencing
hearing.” (Ibid.)
       Here, defendant filed a petition on April 23, 2019, after the
statute’s effective date. He wrote that he had served in the




                                  5
Marine Corps and ended up suffering from “serious mental
health issues and substance abuse addiction” as a result. To
support this claim, he attached extensive Marine Corps service
records and CDCR mental health records. He also stated that the
trial court had not considered his mental health and substance
abuse issues as a factor in mitigation at sentencing. To support
that claim, he attached copies of his sentencing hearing
transcript and plea advisement form. Defendant also noted that
he had been sentenced before January 1, 2015. Therefore, as the
People acknowledge, defendant’s petition alleges that he met the
statutory requirements under section 1170.91, subdivision (b).
       Nevertheless, soon after receiving defendant’s petition, the
court—with no parties present and no apparent notice to
defendant or the prosecution—summarily denied defendant’s
petition. As the People concede, “[u]nder the statute, this was
improper. The trial court should have provided notice to the
District Attorney, [defendant], and any victims before setting a
hearing date. At that hearing, which was required to be at least
15 days after [defendant]’s petition was received, the trial court
could then determine whether [defendant] satisfied the criteria
set forth in [section 1170.91,] subdivision (b), i.e., whether the
circumstance of suffering from his mental health and substance
abuse issues as a result of his military service was considered as
a factor in mitigation at the time of the sentencing in 2011, and
whether [defendant] was sentenced prior to 2015.”
       We agree with the parties that the court’s summary denial
was improper. We therefore reverse and remand with directions
for the trial court to hold the hearing it denied defendant a year
ago.




                                 6
                          DISPOSITION

      The postjudgment order is reversed and the matter is
remanded with directions to comply with Penal Code section
1170.91, subdivision (b)(3). If, at the hearing, the trial court finds
that defendant is eligible for resentencing, it must exercise its
discretion to determine whether to resentence him according to
the provisions of Penal Code section 1170.91, subdivisions (b)(4)
and (5). Upon resentencing, the court may exercise its full
discretion under any newly-enacted sentencing laws, including
under Senate Bill No. 620.




                                              LAVIN, Acting P. J.
WE CONCUR:



      EGERTON, J.



      DHANIDINA, J.




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Filed 5/21/20

                CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                  SECOND APPELLATE DISTRICT

                           DIVISION THREE


THE PEOPLE,                          B299607

       Plaintiff and Respondent,     Los Angeles County
                                     Super. Ct. No. VA119464
       v.
                                     Order Certifying Opinion
JONATHAN BONILLA-BRAY,
                                     for Publication
       Defendant and Appellant.      [No change in judgment]



BY THE COURT: *
Tseme Garcia, who is not a party to this matter, has requested
that our opinion in the above-entitled matter, filed April 29, 2020,
be certified for publication. (Cal. Rules of Court, rule
8.1120(a)(1).) It appears that our opinion meets the standards set
forth in California Rules of Court, rule 8.1105(c). The opinion is
ordered published in the Official Reports.




* LAVIN,    Acting P. J.    EGERTON, J.           DHANIDINA, J.
