Filed 8/25/20 P. v. Inman CA4/1
                 NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                COURT OF APPEAL, FOURTH APPELLATE DISTRICT
                                                 DIVISION ONE
                                         STATE OF CALIFORNIA


THE PEOPLE,                                                          D076350
         Plaintiff and Respondent,
         v.                                                          (Super. Ct. No. SCN320624)
MICHAEL WAYNE INMAN,
         Defendant and Appellant.


         APPEAL from an order of the Superior Court of San Diego County,
Harry M. Elias, Judge. Affirmed.

         Sheila O’Connor, under appointment by the Court of Appeal, for
Defendant and Appellant.
         Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Melissa
Mandell and Genevieve Hebert, Deputy Attorneys General, for Plaintiff and
Respondent.
                     2014 Sentencing and Direct Appeal1
      Following a bench trial in June 2014, the court found defendant
Michael Wayne Inman guilty of unlawfully annoying and molesting a child

under 18 years of age (Pen. Code,2 § 647.6, subds. (a)(1) & (c)(2), count 1);
and indecent exposure (§ 314, subd. (1), count 2). As relevant here, the court
found true the allegations that defendant had previously been convicted of
three prior strikes (§§ 667, subds. (b)–(i), 1170.12 & 668); and eight prison
priors (§§ 667.5, subd. (b) & 668).
      At defendant’s October 10, 2014 sentencing, the court over the People’s
opposition exercised its discretion under People v. Romero (1996) 13 Cal.4th
497 (Romero), dismissed two of defendant’s prior strike offenses, and imposed
a term of 20 years in prison. Defendant’s sentence consisted of the upper
term of six years on count 1, doubled to 12 based on the strike prior, and a
consecutive eight years for his eight prison priors. The court stayed under
section 654, subdivision (a) the upper term of three years doubled to six on
count 2. In sentencing defendant to 20 years, the court rejected the
recommendation of probation that he be sentenced to 41 years to life, and the
request by the prosecutor at the hearing that he receive 33 years to life.
      On direct appeal, this court in People v. Inman (Sept. 11, 2015,
D066916), 2015 WL 5301558) found insufficient evidence to support one of
defendant’s prison priors from another state, ordered his sentence reduced
accordingly, but otherwise affirmed the judgment.

1     Defendant’s conviction stemmed from him exposing himself in May
2013 to 16-year-old Natalia P., who was a passenger riding on the same city
bus as defendant.

2    All further statutory references are to the Penal Code unless noted
otherwise.

                                        2
   Defendant’s Section 1170.91 Petition and His Arguments in this Appeal
      In February 2019, defendant appearing in propria persona filed what
the court treated as a petition for recall of his sentence (petition) under newly
amended section 1170.91, subdivision (b)(1). The court appointed the Office
of the Public Defendant to represent defendant. In connection with the July
18, 2019 hearing, defendant that same day filed a formal petition for
resentencing.
      The same judge who had sentenced defendant in October 2014 presided
over the July 18 hearing. In denying the petition, the court found defendant
was statutorily ineligible for such relief because in anticipation of his October
2014 sentencing, the issue of defendant’s military service and the possibility
he may be suffering mental health disorders as now described in section
1170.91 was fully vetted by the defense and was considered by the court in
imposing the 20-year sentence on defendant. (See § 1170.91, subd. (b)(1)(A),
discussed post.)
      Defendant appealed.
      In his opening brief, defendant argues the court erred in denying him
relief under section 1170.91 because at his 2014 sentencing, the court
allegedly only gave “cursory mention” to his service-related PTSD.
Defendant thus argues the court erred in denying him a “full hearing” on
whether he was entitled to resentencing under section 1170.91.
      The People’s Brief
      In their respondent’s brief, the People argue the order denying
defendant’s petition should be affirmed because defendant is statutorily
ineligible for resentencing under section 1170.91 because his service-related
PTSD was considered by the trial court in 2014 in granting him Romero
relief. (See § 1170.91, subd. (b)(1)(A).) The People further argue that remand


                                        3
in any event would be a futile act because the court in denying defendant’s
petition at the July 18 hearing noted it would not go lower than 20 years even
if it could resentence defendant under section 1170.91.
      In a footnote in their brief, the People submit that, although not raised
by defendant in his opening brief, “it appears that six of the one-year prior
prison terms that were applied to appellant’s sentence are no longer valid” as
a result of newly amended section 667.5, subdivision (b). As discussed post,
this amended statute enhances a prison term by one year only if the prior
prison term was for a sexually violent offense as defined in Welfare and
Institutions Code section 6600, subdivision (b).
      In his reply brief, defendant argues that in addition to relief under
section 1170.91, the court on remand should strike six of his seven prison
priors under newly amended section 667.5, as suggested by the People.
      We first turn to the order denying defendant’s petition.
                                DISCUSSION
                                       I
                     Resentencing under Section 1170.91
      A. Guiding Principles
      Enacted in 2014, former section 1170.91 created a mechanism for
courts to consider mental health and substance abuse problems stemming
from military service as a mitigating factor when imposing a determinate

term under section 1170, subdivision (b).3 (See Stats. 2014, ch. 163 (Assem.


3     As originally enacted, former section 1170.91 provided in part: “(a) 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 under subdivision (b) of Section 1170 . . . .”
                                       4
Bill No. 2098), § 2, eff. Jan. 1, 2015.) Effective January 1, 2019, Assembly
Bill No. 865 (2017–2018 Reg. Sess.) amended section 1170.91 to extend its
application to a person “currently serving a sentence for a felony conviction.”
      Pertinent to this appeal, subdivision (b)(1) of section 1170.91 provides:
“A person currently serving a sentence for a felony conviction, whether by
trial or plea, who is, or was, a member of the United States military and who
may be suffering from sexual trauma, traumatic brain injury, post-traumatic
stress disorder [(PTSD)], substance abuse, or mental health problems as a
result of his or her military service may petition for a recall of sentence,
before the trial court that entered the judgment of conviction in his or her
case, to request resentencing pursuant to subdivision (a) if the person meets
both of the following conditions: [¶] (A) 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. [¶] (B) The person was sentenced prior to January 1, 2015. This
subdivision shall apply retroactively, whether or not the case was final as of
January 1, 2015.” (Italics added.)
      B. Additional Background re: 2014 Sentencing in the Direct Appeal
      Before his October 10, 2014 sentencing, defendant, who then was 61
years old, filed a statement in mitigation and a request for relief under
Romero. Defendant noted he was then facing a sentence of at least 25 years
to life under the Three Strikes law and was ineligible for a grant of probation
due to his criminal history. The mitigation statement included four
attachments: defendant’s probation report (exhibit A); his August 2014
psychological evaluation (exhibit B); family letters from Vickie U. and Steve
(collectively, exhibit C); and a letter from defendant (exhibit D).


                                        5
      As particularly relevant here, defendant in the mitigation statement
addressed his “complex history,” including that he “is a Vietnam War veteran
who suffers from post-traumatic stress disorder [PTSD], depression and
anxiety. (Exhibit B). He takes a prescription drug to treat this issue and
reports using it consistently when not in custody.”
      The mitigation statement went on, “In letters from his sister Vickie U[.]
and Steve . . ., Mr. Inman’s PTSD and relevant mental disability from service
in Vietnam are clearly explained. While Mr. Inman may be a societal
nuisance, the letters indicate that he has the support of family, a socially
supportive outlet that can help him to get the treatment needed to
minimalize his tendency to expose himself. (Exhibits C). Mr. Inman’s own
letter indicates that he would not be opposed [to] a term of commitment
where he could receive medical treatment through a hospital. He indicates
self-reflection, stating ‘how sorry’ he is that he exposed himself. The letter
also indicates that his intent was not to hurt others when he exposed himself.
Mr. Inman’s letter also indicates the nature of the trauma he suffered while
serving his country in Vietnam. This trauma led to his PTSD. He expresses
a desire to find effective treatment for his condition and a strong desire to be
able to go back to Salt Lake City to benefit from the support of his family.”
      The statement next turned to the Rules of Court and addressed the
circumstances in mitigation including that defendant “was suffering from a
mental or physical condition that significantly reduced culpability for the

crime.” (Cal. Rules of Court,4 rule 4.423 (b)(2)(C).) Defendant thus
requested the court strike one or more of his strike priors because his most
recent conviction did not involve a violent or serious felony warranting a life
term under the Three Strikes law.


4     All further rule references are to the Rules of Court.
                                        6
      The probation report, exhibit A, under the rubric psychological and
medical problems, referenced defendant’s PTSD: “The defendant suffers from
PTSD, depression and anxiety. He is currently taking Wellbutrin and stated
that he is consistent about taking his medication as prescribed when not in
custody.” The probation report also noted that while in the Army in Vietnam,
defendant used marijuana and LSD; and that also while in Vietnam, he
“misused ‘sterno,’ nasal inhalers, heroin, Percodan and Percogesic ‘because of
the pain from headaches.’ ”
      Defendant’s August 2014 psychological examination showed that
defendant was being treated for PTSD; that he dropped out of high school,
joined the Army, and served in Vietnam; that his mental history showed the
Veterans Administration (VA) had diagnosed defendant with PTSD; and that
in 1994 he received inpatient treatment in San Diego as a result of being a
“Vietnam Veteran[].”
      The psychological report described a first-hand account of an event in
Vietnam that contributed to defendant’s PTSD: “ ‘I have so much guilt over
the incident in Vietnam. We turned and ran. I could see bloody bodies of my
friends, three guys we left there when we ran. I can’t get over it.’ ”
Defendant went on to note that he “stresses over this issue” and has
“nightmares regarding it.” The report concluded defendant had a “significant
history of mental health problems,” including for PTSD, depression, anxiety,
and paraphilia indecent exposure.
      Vickie, defendant’s older sister, described her brother as a “typical
teen” until he joined the Army at the age of 17 and was sent to Vietnam. In
her August 13, 2014 letter addressed to the court, she writes: “There his
assignment was driving an ambulance picking up dead people. Probably still
doing drugs and maybe exposed to Agent Orange. I don’t know. He also has


                                        7
some sort of sinus headaches that caused him to have severe pain. He has
told me horror stories about Nam and how he cannot even tell the doctors but
he still sees it vividly he tells me. He started to get in trouble for dropping
his pants when he returned home from Nam. Something horrific must have
happened to him when he was in Nam, that caused this, and it started right
after he was discharged. He seems to have flashbacks and does not know
what he is doing or where he is. He has PTSD. The treatments at the VA
Hospital were horrid, (electric shock) and I can say they probably [were] not
any help. He needs some psychiatric care with a doctor that can get through
to him somehow, because he just takes a very tough guy stance and will not
talk about it. I know for a fact that he just blacks out, and does not know
where he is or what he does. I have talked to him on the phone during this
last time he was out of prison and I could tell by listening, he was in some
mental place. When I was begging him to just go back to his room and play
video games I could tell his mind was wandering off somewhere. He would
tell me how beautiful the ocean was and finally say that he just could not
stay in his room. He has some serious mental problems. He just drifts off
into another place and time and does not know where he is at.
      “He hasn’t had much of a life, most spent in jail or prison and I’m really
sorry for the people he offended but at least they live in [a] free country
where they can come and go as they want. That’s because young men like
Michael went to war at age seventeen and some became what he is today or
even worse.”
      Defendant’s brother, Steve, in a separate letter to the court dated
July 15, 2014, wrote defendant has had “problems with drugs and alcohol and
exposing his naked body to females since he came back from the Vietnam
war.” Steve added his brother “had a terrible experience in Vietnam and


                                        8
since he came home has never been the same.” Steve pleaded that his
brother receive “treatment not punishment,” and recounted the myriad
failings of the treatment his brother had received by the VA.
      Defendant’s own lengthy August, 10, 2014 letter described his remorse
in committing the instant offenses and discussed the PTSD he suffered while
serving in the Army in Vietnam. He wrote, “What is my problem? I tell you
it is from my head problems that developed during basic training, in the U.S.
Army.”
      He added, “I left the Army in 1972. I had been shot at from across the
treeline near Quan Tri, a Lieutenant told me in not [too] nice of words, ‘Turn
this thing around and get us out of here.’ We were to pick up three guys and
tow their broken down vehicle. To this day I have nightmares about them.
We never found them but I see bloodied arms torn off, and green ripped up
fatigues wrapped around them. I take alot of Wellbutrin which seems to
calm my anxiety but the dreams don’t go away. When I came home from the
war I went to the V.A. Hospital in Salt Lake City (my home town)[.] By then
I thought that I would always have the [headaches] and that there was
nothing else to do but overmedicate and drink, of course, to try and get rid of
the pain. I started doing more and more exhibitions. I told them at the V.A.
and they put me in their [psychiatric] outpatient program (called ‘day
hospital’). . . . My severe headaches also continued, and my bad dreams
although I was reluctant to talk about anything especially dreams. P.T.S.D.
was pretty much unheard of [at] that time. There was ‘shell shock,’ which I
didn’t have.” Defendant went on to write that he served his country
“honorably,” but that he needed treatment.
      The People in their sentencing statement opposed defendant’s request
to strike his strike priors under Romero. The People described in detail


                                       9
defendant’s three prior strike convictions, dating back to 1978, noting
defendant exhibited a “high level of violence” in committing these past
offenses.
      Briefly, in May 1978, defendant assaulted Bonnie M. with the intent to
commit rape. In July 1978, he kidnapped 14-year-old Tamera S, and
assaulted her with intent to commit rape. When Tamera tried to escape,
defendant repeatedly hit her over the head with a rock, nearly killing her.
      In 2003, defendant victimized Haley H. and Randie J. He was
convicted of another strike for the lewd act on Haley, who was then 11 years
old. The People noted defendant had spent most of his adult life in prison
and as evidenced by the most recent offense, he continued to “prey on young
girls,” and has performed poorly while on parole.
      The People therefore requested defendant be sentenced to 33 years to
life, noting the circumstances in aggravation outweighed the circumstances
in mitigation as defined by the Rules of Court. The People’s opposition
included impact statements from former victims Tamera J. and Haley H.,
and from defendant’s most recent victim, Natalia.
      At the October 10, 2014 sentencing hearing, the court noted it had
reviewed defendant’s probation report; his mitigation statement and request
for Romero relief, including all the “attachments thereto”; the People’s
sentencing statement and opposition to the Romero motion; and the victim
impact statements proffered by the People. The court noted various
“parameters” for the hearing, including that defendant was ineligible for
probation and was subject to the Three Strikes law. The court thus stated
the “real decision” it needed to make was whether to grant defendant Romero
relief and the sentence it should impose.




                                      10
      After hearing argument from the prosecutor requesting, as noted, that
defendant be sentenced to 33 year to life, the court next heard from the
defense, including defendant himself, who reiterated he needed help and felt
remorse for all of the girls he had victimized over the years, including most
recently Natalia.
      The court in response stated, “You [i.e., defendant] have what’s called a
paraphilia and you respond to that and whether the Vietnam war, PTSD or
the drug usage that started there or continued drug use thereafter play a role
as it relates [to] your ability to fight your urges or not. I’m convinced the
urges are there. So you may tell me that you think it’s—you thought it was a
joke or you think it’s a joke [exposing himself to these girls]. It’s more than
that, however, because it’s something driving you.”
      Defense counsel argued the court should exercise its discretion under
Romero, strike defendant’s prior strikes, and avoid sentencing him to a prison
term that essentially would mean he would die in custody. The court noted
the “real question” was whether defendant should be given another chance to
be paroled. The court noted it was “mindful” that in 2003, when he was
convicted under section 288 and received 10 years in prison, defendant then
was “eligible for life, and the priors were struck, and he was sentenced to
what everyone believed at that time was an appropriate term”; and that it
was also mindful of defendant’s instant offenses involving Natalia, which the
court deemed “predatory in nature,” considering defendant’s conduct and his
history.
      The court on the record then weighed its sentencing options. The court
noted that to take defendant off the “life track sentencing” requirement, it
would need to strike two of his serious felony priors; and that if it did so,
given defendant’s instant offenses showed “premeditation,” and his “failures


                                        11
at probation and/or parole over the course of his criminal history,” it would
sentence him to the “upper term” and impose a 12 year sentence on count 1,
not including defendant’s prison priors.
      The court added, “So considering the discretion given to me pursuant
to . . . Romero . . . I’m going to strike the first and second strike priors. Those
are the . . . [section] 220 allegations. I’m going to leave the third strike prior
[section] 288 from San Diego in 2005. I’m going to impose then the upper
term on count one, which pursuant to the application of the strike is 12 years
in state prison.” The court then noted that, while it had the discretion to
“strike or stay” defendant’s eight prison priors, it chose “not to” because of

defendant’s extensive criminal history.5
      C. Additional Background re: 2019 Petition Hearing
      At the July 18, 2019 hearing on defendant’s petition, the court at the
outset noted it had read defendant’s petition and the attachments thereto,
and the People’s opposition to the petition. The court further noted it had
reread defendant’s original probation report and various letters, summarized


5      Indeed, as set out in his probation report, “defendant has a lengthy
criminal history, dating back to the early 1970s. Locally, he has never been
supervised on formal probation. All of his local felony cases have resulted in
State Prison sentences. The defendant has not performed well on parole. He
has been sentenced to prison in seven felony cases in California since 1978.
With the exception of two of those cases, the defendant’s parole was
repeatedly revoked and he was returned to prison for parole violations. In
the two cases in which he was not returned to prison for parole violations, it
appears he committed new felonies while on parole and received new prison
terms in those matters. [¶] The defendant was on parole at the time the
instant offense was committed. He was sentenced to ten years in prison on
06/15/05. Since 2012, the defendant violated parole four times (including the
instant offense) and was returned to custody to serve time for those
violations. The defendant stated that he was out of prison from the last
violation for about one month prior to the instant offense. He reported that
his previous violations were for similar conduct as the instant offense.”
                                        12
ante, and had received a CD from the VA that was forwarded to defense
counsel, who represented it contained “roughly 1,300 pages from the
Veterans Administration on Mr. Inman, only some of which is on the issue of
PTSD.”
      Defense counsel at the petition hearing (correctly) noted that
defendant’s October 2014 sentencing predated the enactment of former
section 1170.91. As such, the law in effect at that time was former section
1170.9, which did not apply to defendant because to qualify under this
statute, a person had to be probation eligible and actually placed on

probation.6 Defense counsel further (correctly) noted that, with the
enactment of former section 1170.91, a person’s service-related PTSD as a
matter of statutory law could be considered by a court in mitigating a
person’s sentence even if the person was not eligible for a grant of probation.
      Defense counsel, however, “recognize[d] and concede[d] that the Rules
of Court were the same and the court could have . . . considered [defendant’s]

6        The version of former section 1170.9 applicable when defendant
committed his offense in the direct appeal and was sentenced provided in
part: “(a) In the case of any person convicted of a criminal offense who could
otherwise be sentenced to county jail or state prison and who alleges that he
or she committed the offense as a result of sexual trauma, traumatic brain
injury, post-traumatic stress disorder, substance abuse, or mental health
problems stemming from service in the United States military, the court
shall, prior to sentencing, make a determination as to whether the defendant
was, or currently is, a member of the United States military and whether the
defendant 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 service. . . . . [¶] (b) If the court concludes that a defendant
convicted of a criminal offense is a person described in subdivision (a), and if
the defendant is otherwise eligible for probation and the court places the
defendant on probation, the court may order the defendant into a local, state,
federal, or private nonprofit treatment program for a period not to exceed
that which the defendant would have served in state prison or county
jail . . . .” (Italics added.)
                                         13
PTSD as a factor in mitigation under the Rules of Court that were in effect at
the time. However, the court didn’t have statutory mitigation; it had Rules of
Court. The court now has statutory mitigation.” Defense counsel thus asked
the court to set a resentencing hearing under newly amended section
1170.91.
      The prosecutor argued defendant was ineligible for resentencing under
section 1170.91 because the record from the October 2014 sentencing showed
the issue of defendant’s service-related PTSD was a focal point of defendant’s
statement in mitigation, as it was discussed in defendant’s probation report,
his psychological evaluation, and extensively in letters submitted by family
members and defendant. The prosecutor further argued that the court
mentioned PTSD during sentencing, and that defendant received “a
significantly mitigated sentence” as a result of the court striking under
Romero two of his serious strike priors so as to allow defendant to avoid a life
sentence under the Three Strikes law. Because defendant’s PTSD was
considered in 2014 at the time of sentencing, the prosecutor requested the
petition be denied.
      As noted, the same judge who presided over defendant’s 2014
sentencing also heard and considered defendant’s petition. (See § 1170.91,
subd. (b)(2) [providing “[i]f the court that originally sentenced the person is
not available, the presiding judge shall designate another judge to rule on the
petition”].) The judge stated it had been a “number of years” since
defendant’s sentencing and his memory of events was “not great, obviously.”
The court reiterated it went back and reread all the papers from the 2014
sentencing, including the actual sentencing hearing. While mindful
defendant then was not eligible for resentencing for service-related PTSD
under former section 1170.9, the court noted under the Rules of Court that it


                                       14
could “take into account a variety of factors in mitigation, in deciding not only
the issue of whether to grant probation or not, but in trying to make a
determination as to what’s the appropriate term and, perhaps of greater
importance here, in terms of whether or not the strike—any of the particular
strikes that would [have] impacted Mr. Inman’s sentence.”
      Based on the trial transcript from the 2014 sentencing hearing, the
court continued, “I discuss the service in Vietnam, the PTSD, and drawing a
distinction between that and what I would describe then and would still
describe now as a paraphilia that results—that I think played a
role—significant role in the commission of the offense. . . . . [¶] . . . [¶] At
least from my analysis, while the posttraumatic stress would have clearly
been a result of somebody serving in Vietnam, and the substance abuse may
have been a result, likewise, of something that occurred in Vietnam, the
paraphilia involved I don’t believe can be directly related to a person’s
military service. But, more importantly, after the word ‘military service,’
[section 1170.91 subdivision (b)(1)(A)] says: was not considered as a factor in
mitigation at the time of the sentencing.
      “And while I agree with [defense counsel] that I did not consider as a
factor vis-à-vis the granting of probation or not since [defendant] was
statutorily ineligible, I believe that the documents filed, the arguments
presented, and the hearing itself point[] out that it was considered a factor in
mitigation as it related to what was the appropriate sentence to be imposed
and, likewise, whether or not to strike any of his strikes.” The court thus
found defendant was statutorily ineligible for resentencing under section
1170.91, subdivision (b)(1)(A).
      The record shows after defendant addressed the court and why he
suffers from service-related PTSD, the court stated, “I’ve gotten your letters,


                                         15
and I don’t want you to misinterpret what I’m saying. I have no doubt in my
mind that, as a result of your service in Vietnam, you’re suffering from
PTSD.” While the court admitted it now had more information about
defendant’s PTSD than it did at the October 2014 sentencing, it added, “I was
conscious of that. And I believe when I took you down from a much higher
number to a lower number, I took that into account . . . . [¶] . . . [¶] I think
I’d [be] lying to myself if I said: Oh, I never gave PTSD a single thought
when I first sentenced you. I think I did. I think I knew: Could I give you
probation, as the old statute said? No, I couldn’t. I knew that. But I think I
took into account to try and get a number down, at least from my perspective,
knowing what happened on the offense, knowing your criminal record, which
you and I have to agree is pretty [extensive] — to try to get it down to a
number I thought was the right number. I don’t believe I could go lower than
that.” (Italics added.)
      D. Analysis
      Here, we conclude there is ample evidence from defendant’s October
2014 sentencing hearing to support the finding in connection with
defendant’s July 18, 2019 petition that the “circumstance of suffering
from . . . traumatic brain injury, [PTSD], substance abuse, or mental health
problems as a result of [his] military service” was considered “as a factor in
mitigation at the time of sentencing.” (§ 1170.91, subd. (b)(1)(A).)
      Initially, we note from the plain language of section 1170.91,
subdivision (b)(1) that it is defendant’s burden to meet this condition; and
that this burden requires a showing from the “circumstances” that it “was not
considered” in mitigation. (See People v. Verduzco (2012) 210 Cal.App.4th
1406, 1414 (Verduzco) [recognizing the “first step in statutory construction is
to examine the statutory language and give it a plain and commonsense


                                        16
meaning”].) We further note from the plain language of section 1170.91,
subdivision (b)(1)(A), that a defendant’s military service is only “a factor” that
must have been considered at the time of sentencing (see ibid., italics added);
and not “the factor,” when sentence was imposed.
      In addition, analyzing the law as it applied in October 2014, the only
way the court could have considered service-related PTSD as a mitigating
factor in sentencing defendant was through the Rules of Court, which the
record shows defendant’s mitigation statement covered when it noted
defendant “was suffering from a mental or physical condition that
significantly reduced culpability for the crime.” (Rule 4.423(b)(2).) The
record also shows defense counsel and the court, both at the time of
sentencing and years later in connection with the petition, recognized that
defendant’s only avenue to mitigation for service-related PTSD was through
the Rules of Court.
      As summarized ante in detail, defendant’s mitigation statement clearly
shows defendant’s service-related PTSD was not only “a factor” the court
considered (see § 1170.91, subd. (b)(1)(A)) at his 2014 sentencing, but was
front and center in defendant’s request at that hearing to strike his serious
strike priors in order to avoid a life sentence.
      As noted, defendant’s mitigation statement included four exhibits, each
of which raised and specifically addressed his service-related PTSD, as
summarized ante. They included the probation officer’s report, which
chronicled defendant’s drug use while serving in Vietnam and his PTSD as a
result of his service; defendant’s psychological evaluation, which stated
defendant suffered from PTSD and explained in detail defendant’s
experiences in Vietnam; a letter from his older sister Vickie, in which she
described in detail her brother’s assignment in Vietnam as an ambulance


                                        17
driver, his drug use, his possible exposure to Agent Orange, and how her
brother started “to get in trouble for dropping his pants after returning from
Nam” because “[s]omething horrific must have happened to him” there; a
letter from defendant’s brother Steve who, like their sister, addressed
defendant’s “terrible experience[s]” while serving in Vietnam, and who
pleaded with the court that defendant receive “treatment not punishment”;
and a lengthy handwritten letter prepared by defendant, who described being
shot at from across a tree-line while serving in Vietnam and being ordered by
a superior officer to leave three wounded American soldiers on the battlefield,
which defendant stated still caused him nightmares and anxiety.
      What’s more, the record shows the court at the October 2014
sentencing specifically noted that it had read defendant’s mitigation
statement and supporting exhibits; that in determining an appropriate
sentence it recognized defendant’s claim he suffered from PTSD as a result of
serving in Vietnam; but that the court nonetheless was concerned by
defendant’s recidivist behavior, noting it believed defendant’s condition was
not the result of PTSD and/or the war, but rather because defendant had
paraphilia. Mindful that defendant’s 2014 convictions did not involve serious
sexual misconduct, the record also shows the court struggled whether to
impose a life term, which would have meant defendant essentially would die
in custody, or strike two of defendant’s prior strikes, which would give
defendant at least another chance at parole. Ultimately, the court chose the
latter.
      We conclude as a matter of statutory interpretation (see Verduzco,
supra, 210 Cal.App.4th at p. 1414); and, from our extensive review of the
record, summarized ante; that defendant’s service-related PTSD was
considered “as a factor in mitigation” at his 2014 sentencing for purposes of


                                      18
subdivision (b)(1)(A) of section 1170.91. We thus further conclude the court

properly denied defendant’s petition for resentencing.7
                                        II
              Prison Priors Under Newly Amended Section 667.5
      As noted, the People in their respondent’s brief suggested in a footnote
that six of defendant’s seven prison priors no longer could serve to enhance
his sentence based on newly amended section 667.5, subdivision (b).
      “Prior to January 1, 2020, section 667.5, subdivision (b) required trial
courts to impose a one-year sentence enhancement for each true finding on an
allegation the defendant had served a separate prior prison term and had not
remained free of custody for at least five years. [Citation.] Courts
nevertheless had discretion to strike that enhancement pursuant to section
1385, subdivision (a). [Citation.] Effective as of January 1, 2020, Senate Bill
No. 136 . . . amends section 667.5, subdivision (b) to limit its prior prison
term enhancement to only prior prison terms for sexually violent offenses, as
defined in Welfare and Institutions Code section 6600, subdivision (b).”
(People v. Jennings (2019) 42 Cal.App.5th 664, 681 (Jennings).) Because
Senate Bill No. 136 mitigates punishment, it applies retroactively under In re


7       In light of our decision, we deem it unnecessary to address the People’s
alternate contention that remand for resentencing would be a futile act in
this case because the trial judge, in denying defendant’s petition at the July
18 hearing, and after noting defendant’s extensive criminal history, stated, “I
don’t believe I could go lower than that” when discussing why he had
sentenced defendant in 2014 to 20 years and not life. (Italics added.) (See
People v. Johnson (2019) 32 Cal.App.5th 26, 69 [noting we “need not remand
the instant matter if the record shows that the superior court ‘would
not . . . have exercised its discretion to lessen the sentence’ ”]; People v. McVey
(2018) 24 Cal.App.5th 405, 419 [concluding no remand where, given the trial
court’s express consideration of the matter, there appears no possibility that,
if the case was remanded, the trial court would exercise its discretion to
strike the enhancement].)
                                        19
Estrada (1965) 63 Cal.2d 740 to all cases not yet final as of the bill’s effective
date. (Jennings, at pp. 681–682.)
      Here, as we have repeatedly noted, defendant’s sentencing took place in
2014. We decided the direct appeal on September 11, 2015. (See D066916.)
“[A] Court of Appeal decision . . . is final in that court 30 days after filing.”
(Rule 8.366(b)(1).) “A petition for review [to the California Supreme Court]
must be served and filed within 10 days after the Court of Appeal decision is
final in that court.” (Rule 8.500(e)(1).)
      The defendant’s appeal in D066916 was thus final years before Senate
Bill No. 136 took effect. As such, and despite the People’s suggestion

otherwise,8 defendant is not entitled to the retroactive application of newly
amended section 667.5 as it pertains to his seven strike priors. (See
Jennings, supra, 42 Cal.App.5th at pp. 681–682.)




8      It is axiomatic that as a court of review, we are not bound to follow the
meaning of a statute sought by a party. (See Tun v. Wells Fargo Dealer
Services, Inc. (2016) 5 Cal.App.5th 309, 327 [rejecting the concession of the
defendant made during oral argument regarding the meaning of the word
“tender” in Civil Code section 2983.4, a statute awarding a party prevailing
under the Automobile Sales Finance Act reasonable attorney fees and costs];
see also R.J. Land & Associates Construction Co. v. Kiewit–Shea (1999) 69
Cal.App.4th 416, 427, fn. 4 [recognizing the interpretation and applicability
of a statute is a question of law and further noting in the “public interest[,]
we have discretion to reject [a party’s] concession[ ] because our function to
correctly interpret a statute is not controlled by [a party’s] concession of its
meaning”].)
                                            20
                               DISPOSITION
      The trial court’s order denying the petition for resentencing under
section 1170.91 is affirmed.


                                                         BENKE, Acting P. J.

WE CONCUR:



HALLER, J.



GUERRERO, J.




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