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Friday, February 19, 2021


Page 3


S.C. Justice’s ‘Statement’ Is Appended to 2020 C.A. Opinion


By a MetNews Staff Writer


The Judicial Council has re-posted on its website a Court of Appeal opinion that was filed four months ago and appended to it is, what is tantamount to a concurring opinion by California Supreme Court Justice Goodwin H. Liu.

Court of Appeal Justice Thomas M. Goethals of the Fourth District’s Div. Three wrote the Oct. 14 opinion affirming the denial of a resentencing petition filed by Alexander Irwin Valliant who, pursuant to a plea bargain, in 2015 pled guilty to second degree robbery with personal use of a firearm and was sentenced to 12 years in prison. The California Supreme Court at its weekly conference on Wednesday denied review, with its standard one-sentence order— “The petition for review is denied”—being followed by Liu’s “Concurring Statement.”

The order and Liu’s statement appear at the end of the reposted Court of Appeal opinion. Inasmuch as there was no remand to the Court of Appeal, what authority there is for altering that opinion by adding to it was unclear.

Under California Rules of Court, rule 8.264, an opinion of a court of appeal is final 30 days after filing, and may be modified only within that 30-day period.



Armed Robber


Wording of Statute

Liu’s statement is in support of Goethal’s call for legislative attention to the unfairness to Valliant resulting from a faithful application of the statute under which he petitioned. Penal Code §1170.91(b) authorizes a resentencing of veterans convicted of felonies where “A. The circumstance of suffering from…post-traumatic stress disorder…[or] substance abuse…was not considered as a factor in mitigation at the time of sentencing” and “(B) The person was sentenced prior to January 1, 2015.”

Goethals wrote:

“On its face, this provision does not apply to Valliant who was sentenced in March of 2015.”

As of Jan. 1, 2015, a veteran facing felony sentencing had the right to have the after-effects of military service taken into account. However, when Valliant was sentenced, his condition had not yet been diagnosed and linked to his criminal undertaking.

Legislative Attention Urged

The October opinion concludes with these words:

“[W]e wonder if the Legislature foresaw this result when it passed section 1170.91. While Valliant’s position here may be unusual, we doubt it is unique.  With that thought in mind, we invite the Legislature to revisit this issue and, if it believes it is appropriate to do so, to provide Valliant and any other veteran in a similar position, with statutory relief.”

In his statement, Liu said:

“[I]t is undisputed that Valliant’s military-related conditions—PTSD and opioid abuse disorder—were not considered during his sentencing in 2015. In fact, it was not until 2017 that the United States Department of Veterans Affairs (VA) verified that his conditions stemmed from his military service. Thus, Valliant is in the unfortunate position of not having had his military-related conditions considered at his initial sentencing while also being ineligible for resentencing pursuant to section 1170.91, subdivision (b).

“I agree with the Court of Appeal that it is unlikely the Legislature specifically intended this result.”

‘Makes Little Sense’

He went on to say:

“[B]y requiring that the original sentencing occur prior to January 1, 2015, for an individual to be eligible for resentencing—irrespective of when it was determined that the trauma, mental health, or substance abuse conditions were a result of military service—section 1170.91, subdivision (b) fails to ensure equal treatment of all veterans. The January 1, 2015 requirement also makes little sense as a policy matter. With respect to PTSD, for example, the scientific literature has recognized delayed onset PTSD, particularly among veterans, where symptoms can take time to fully manifest….Thus, a strict time requirement in these circumstances can lead to arbitrary and inequitable results.”

The jurist declared:

“…I echo the Court of Appeal’s call for renewed legislative attention to this issue.”

Goethal’s Oct. 14 opinion in People v. Valliant appears at 55 Cal.App.5th 903. The Supreme Court case number is S265734.


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