People v. Byrd CA4/2

• Court: California Court of Appeal
• Decided: March 18, 2021
• Docket: E074049
• Status: Unpublished

Opinion

Filed 3/18/21 P. v. Byrd CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E074049

v. (Super.Ct.No. FVI1303433)

LAMAR JERMAIN BYRD, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino County. John M. Tomberlin,

Judge. Affirmed with directions.

Heather L. Beugen, 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, Michael Pulos and Nora S. Weyl,

Deputy Attorneys General, for Plaintiff and Respondent.

1 INTRODUCTION

Defendant and appellant Lamar Jermain Byrd appeals from an order denying his

petition pursuant to Penal Code1 section 1170.91, subdivision (b), which provides for

resentencing of military members or veterans suffering from certain mental health and

substance abuse problems as a result of military service if the sentencing court did not

consider such problems as factors in mitigation. Defendant argues that the trial court

erred in denying his petition without actually determining his eligibility for relief first.

He also contends he was denied his federal due process right to be present at the hearing

on the petition and requests a remand for another hearing in his presence. We affirm with

directions.

PROCEDURAL BACKGROUND

Defendant was charged by information with attempted murder (§§ 664, 187,

subd. (a), count 1), second degree robbery (§ 211, count 2), and assault with a deadly

weapon (§ 245, subd. (a)(1), count 3). As to counts 1 and 2, the information alleged that

he personally used a firearm within the meaning of section 12022.53, subdivisions (b)

and (c). It also alleged as to counts 1 through 3 that defendant personally used a firearm

within the meaning of section 12022.5, subdivision (a).

On October 31, 2014, defendant entered a plea agreement and pled no contest to

counts 1 and 2 and admitted the firearm allegation under section 12022.5, subdivision (a),

as to count 1. Defendant asked to be sentenced immediately. The court proceeded to

1 All further statutory references will be to the Penal Code unless otherwise indicated. 2 pronounce judgment according to the agreed upon terms, stating that it was “making all

of [its] rulings based on the fact that this is a negotiated plea agreement.” Accordingly,

the court sentenced him to the midterm of seven years on count 1, the midterm of three

years on count 2 to be served concurrently, and a consecutive 10 years on the firearm

enhancement, for a total term of 17 years in state prison.

On June 18, 2019, defendant filed a petition for resentencing pursuant to section

1170.91, subdivision (b). He attached evidence establishing he had served in the military

and a psychological assessment that concluded he suffered from posttraumatic stress

disorder (PTSD), alcohol abuse, and depression as a result of his military service. The

psychologist who evaluated him opined that his PTSD and substance abuse “factored into

his decision” to commit the current offenses. The People filed an opposition to the

petition.

On October 18, 2019, the trial court held a hearing on the petition. Defendant was

not present but was represented by counsel. Defense counsel asked for a formal hearing.

However, he then requested the court to “reduce the use of the firearm enhancement from

the ten-year aggravated gun charge, which the Court now has discretion to strike.”

Defense counsel stated, “we can avoid [the] 1170.91 issue and strike the gun

enhancement.” The court replied, “This is a case that was a plea agreement. As you

pointed out[,] the case was a life case. And [defendant] took the opportunity to enter into

a plea agreement, which was highly advantageous to him. . . . [¶] . . . [¶] We had no

way of anticipating the law would change, but I wouldn’t in any way, had [sic] reason to

have deviated from the course that I previously indicated. And that is that I would not

3 have accepted less time. I would not have accepted a plea agreement that did not offer

the substantial period of incarceration for someone who is otherwise facing the possibility

of 25 years to life and perhaps never getting out.” The court then denied the petition “on

the basis that [it] wouldn’t grant the relief under any circumstances.”

DISCUSSION

I. Defendant is Not Eligible for Relief Under Section 1170.91, Subdivision (b)

Defendant contends the court abused its discretion in summarily denying his

resentencing petition without first determining whether he met the criteria in section

1170.91, subdivision (b). He claims that his acceptance of a plea deal was irrelevant to

his eligibility for resentencing, and there was “no credible way for the trial court to guess

that it would not have granted relief to [him] under any circumstances, now that [it] was

required to accept [his] mental health diagnoses stemming from his combat service as a

mitigating factor.” We conclude that defendant is not eligible for relief.

A. Section 1170.91

“When the Legislature first enacted section 1170.91, effective January 1, 2015, it

contained a single paragraph creating a requirement that a sentencing court 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).

(Stats. 2014, ch. 163, § 2.) Specifically, the statute provided, ‘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

4 military service, the court shall consider the circumstance as a factor in mitigation when

imposing a term under subdivision (b) of Section 1170.’ [Citation.] As relevant here,

section 1170.91 required the trial court to consider mental health and substance abuse

problems as factors in mitigation only ‘when imposing a term under subdivision (b) of

Section 1170.’ [Citation.]” (People v. King (2020) 52 Cal.App.5th 783, 788 (King).)

Section 1170, subdivision (b) “describes the trial court’s exercise of sentencing discretion

to choose an upper, middle or lower determinate term based on factors in mitigation and

aggravation.” (King, at p. 788, fn. omitted; see § 1170, subd. (b).)

“In 2018, the Legislature amended section 1170.91 to provide relief for former or

current members of the military who were sentenced before January 1, 2015, and did not

have their mental health and substance abuse problems considered as factors in mitigation

during sentencing.” (King, supra, 52 Cal.App.5th at p. 788.) Section 1170.91,

subdivision (b)(1), provides in relevant part: “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 . . . post-traumatic stress disorder, 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 . . . 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.” (§ 1170.91, subd. (b)(1).)

5 B. Defendant is Not Entitled to Relief

Defendant seeks reversal of the court’s denial order and requests that we remand

the matter for another resentencing hearing to determine if he meets the eligibility criteria

in section 1170.91, subdivision (b)(1)(A) and (b)(1)(B). The People contend that the

court implicitly found him eligible “by reaching the merits and stating that it would not

have sentenced [him] to anything less,” so remand would be futile.

Defendant’s eligibility for relief under section 1170.91 raises questions of

statutory construction. Questions of statutory construction present questions of law and

are reviewed de novo. (People v. VanVleck (2016) 2 Cal.App.5th 355, 362; Jones v.

Pierce (1988) 199 Cal.App.3d 736, 741 [“Questions of statutory interpretation are, of

course, pure matters of law upon which we may exercise our independent judgment.”].)

A petitioner who meets the requirements set forth in section 1170.91, subdivision

(b), obtains the remedy of “resentencing pursuant to subdivision (a).” (§ 1170.91,

subd. (b)(1).) Section 1170.91, subdivision (a), provides that the trial court shall take into

account the defendant’s mental health and substance abuse problems “when imposing a

term under subdivision (b) of Section 1170.” (§ 1170.91, subd. (a), italics added.) “A

trial court that sentences under subdivision (b) of section 1170, exercises its discretion to

choose an upper, middle or lower determinate term based on its consideration of factors

in mitigation and aggravation. However, when a trial court sentences a defendant who

has agreed to a stipulated sentence for a term of years, the trial court exercises no

discretion to decide between an upper, middle and lower term and may not consider

factors in mitigation and aggravation. Therefore, the trial court is not ‘imposing a term

6 under subdivision (b) of Section 1170.’ ” (King, supra, 52 Cal.App.5th at p. 791.)

Furthermore, when a defendant enters into a plea and agrees to a stipulated

sentence, “upon accepting the plea, the trial court may not proceed as to the plea other

than as specified in the plea.” (King, supra, 52 Cal.App.5th at pp. 790-791.) “ ‘ “While

no bargain or agreement can divest the court of the sentencing discretion it inherently

possesses [citation], a judge who has accepted a plea bargain is bound to impose a

sentence within the limits of that bargain. [Citation.] ‘A plea agreement is, in essence, a

contract between the defendant and the prosecutor to which the court consents to be

bound.’ [Citations.]” ’ ” (People v. Stamps (2020) 9 Cal.5th 685, 701.)

Here, defendant entered into a plea and agreed to a specific term of 17 years,

which was comprised of the midterm of seven years on count 1, a concurrent three years

on count 2, and a consecutive 10 years on the firearm enhancement. The court accepted

the plea agreement and imposed the agreed-upon term. As such, it did not consider

factors in mitigation and aggravation or exercise discretion to decide between an upper,

middle and lower term. In other words, it did not impose a term under section 1170,

subdivision (b). (King, supra, 52 Cal.App.5th at p. 791.) Therefore, defendant is not

eligible for the relief afforded under section 1170.91, subdivision (b)(1), since he cannot

be resentenced to an upper, middle or lower term based on factors in mitigation and

aggravation. (King, at p. 791.)

In sum, the court was required to impose the stipulated sentence of 17 years in

prison pursuant to the plea agreement. It did not impose a term under section 1170,

subdivision (b). Thus, under the plain language of the statute, defendant is not eligible

7 for relief under section 1170.91, subdivision (b). (King, supra, 52 Cal.App.5th at p. 791.)

Although the court did not expressly state that defendant was ineligible for relief under

the statute, it noted that he entered a plea agreement and denied his petition “on the basis

that [it] wouldn’t grant the relief under any circumstances.” We affirm the court’s ruling.

(People v. Geier (2007) 41 Cal.4th 555, 582 [“we review the ruling, not the court’s

reasoning and, if the ruling was correct on any ground, we affirm.”].)

II. Any Error in Holding the Hearing Without Defendant’s Personal Presence Was

Harmless

Defendant argues he was denied the right to due process because he was not

personally present at the hearing when the court denied his section 1170.91 petition.

Thus, he seeks a remand for another hearing to be held in his presence. The People agree

that a defendant has a right to be present at a resentencing hearing, but contend that any

error in denying defendant’s petition in defendant’s absence was harmless beyond a

reasonable doubt. We agree with the People.

It is undisputed that defendant was entitled to be present at the hearing on the

resentencing petition. (People v. Cutting (2019) 42 Cal.App.5th 344, 347-348.)

However, any error in the court proceeding with the hearing in his absence was harmless

beyond a reasonable doubt. (Ibid. [“the error ‘may be deemed harmless only if we can

conclude beyond a reasonable doubt that the deprivation did not affect the outcome of the

proceeding.’ ”].) Because defendant is ineligible for relief under section 1170.91, his

presence at the hearing would not have made any difference. (See ante, § I.)

8 III. Clerical Errors Should Be Corrected

Although not raised by the parties, we note an apparent clerical error. Generally, a

clerical error is one inadvertently made. (People v. Schultz (1965) 238 Cal.App.2d 804,

808.) Clerical error can be made by a clerk, by counsel, or by the court itself. (Ibid.

[judge misspoke].) A court “has the inherent power to correct clerical errors in its

records so as to make these records reflect the true facts. [Citations.]” (In re Candelario

(1970) 3 Cal.3d 702, 705.)

Defendant was charged with attempted murder (§§ 664, 187, subd. (a), count 1),

second degree robbery (§ 211, count 2), and assault with a deadly weapon (§ 245,

subd. (a)(1), count 3). As to counts 1 and 2, it was alleged that he personally used a

firearm within the meaning of section 12022.53, subdivisions (b) and (c). As to counts 1

through 3, it was alleged that he personally used a firearm within the meaning of section

12022.5, subdivision (a). Defendant pled no contest to counts 1 and 2 and admitted the

allegation under section 12022.5, subdivision (a) as to count 1. However, we note that

the court did not dispose of count 3 or the remaining firearm allegations in its oral

pronouncement of judgment. Notwithstanding the oral pronouncement of judgment, the

minute order states that the court ordered count 3 and the remaining firearm allegations

dismissed. In the interest of clarity and accuracy, we will remand the matter with

directions for the trial court to dispose of the remaining count and allegations.

9 DISPOSITION

The matter is remanded with directions for the trial court to dispose of count 3 and

the remaining allegations defendant did not admit. In all other respects, the judgment is

affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

FIELDS J.

We concur:

MILLER Acting P. J.

SLOUGH J.