Error and/or relief
Because the court did not follow the required procedures for adjudicating the petition brought under section 1170.91, we reverse and remand for further proceedings. We also direct the superior court to correct a clerical error in the abstract of judgment.
First Holding:
We interpret the requirements of section 1170.91 de novo.
Authority:
People v. Bonilla-Bray (2020) 49 Cal.App.5th 234, 237
Second Holding:
Section 1170.91(b)(1) provides that 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, substance abuse, or mental health problems as a result of the person’s military service may petition for a recall of sentence, before the trial court that entered the judgment of conviction in the case, to request resentencing if 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.
Authority:
PEN 1170.91
Third Holding:
If the trial court finds the defendant satisfies the criteria for relief, the court may, in the interest of justice, do either of the following: (1) reduce the defendant’s term of imprisonment by modifying the sentence; or (2) vacate the conviction and impose judgment on any necessarily included lesser offense or lesser related offense, whether or not that offense was charged in the original pleading, and then resentence the defendant to a reduced term of imprisonment with the concurrence of both the defendant and the prosecution.
Authority:
PEN 1170.91(b)(3)(A)–(B)
Fourth Holding:
Upon receiving a section 1170.91 petition for resentencing, the trial court must hold a public hearing to determine whether the defendant satisfies the statutory criteria for relief. The prosecution, the defense, and any victim must be given at least 15 days’ notice of the hearing. At that hearing, the prosecution shall have an opportunity to be heard on the defendant’s eligibility and suitability for resentencing. The trial court erred by denying the defendant’s petition for resentencing without holding a properly noticed public hearing as required by section 1170.91(b)(3).
Authority:
PEN 1170.91(b)(3)
People v. Bonilla-Bray (2020) 49 Cal.App.5th 234, 239
Fifth Holding:
Though the original version of section 1170.91 limited its application to those serving a determinate sentence, the Legislature amended the section in 2022 to remove the limitation.
Authority:
People v. Sherman (2023) 91 Cal.App.5th 325, 330 [In 2022, the Legislature amended
People v. Harrison (2025) 116 Cal.App.5th 1145, 1154 [same]
Sixth Holding:
There is a clerical error in the abstract of judgment. It states that the defendant was convicted of grand theft of a vehicle pursuant to section 487h(a), when in fact he was convicted of the lesser included offense of unlawful driving of a vehicle pursuant to Vehicle Code section 10851(a).
If not already done, the abstract of judgment must be amended to correct this error.
Authority:
People v. Mitchell (2001) 26 Cal.4th 181, 185