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Name: People v. Sherman (2023) 91 Cal.App.5th 325
Case #: D080241
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 05/09/2023

Resentencing for consideration of military service under Penal Code section 1170.91 does not apply to defendants convicted of super-strike offenses or offenses requiring registration as a sex offender, including cases pending on appeal when this limitation went into effect. In 2020, defendant petitioned under section 1170.91 for resentencing of his 2001 convictions for rape and sexual assault of five women, resulting in a sentence of 123 years to life. He argued that his substance abuse and mental health conditions, which were a result of his military service, were not considered as mitigating factors at his original sentencing. The trial court denied relief. Defendant appealed. Held: Affirmed. Section 1170.91 authorizes retrospective relief for previously sentenced criminal defendants who may suffer from certain conditions as a result of their military service. While defendant’s appeal was pending, the Legislature restricted eligibility for resentencing by adding subdivision (c), which (effective January 1, 2023), provides that section 1170.91 does not apply to persons convicted of super-strike offenses or offenses requiring registration as a sex offender. Section 1170.91, subdivision (c) applies to pending petitions for resentencing that were filed before January 1, 2023, including those pending on appeal. Thus, even assuming that the trial court erred under the prior version of section 1170.91, defendant is now categorically ineligible for relief under the version currently in effect. Where the Legislature has conferred a remedy and withdraws it by amendment or repeal of the remedial statute, the new statutory scheme may be applied to pending actions without triggering retrospectivity concerns.

The full opinion is available on the court’s website here: