Monday, December 15, 2025
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Mitigation for Military Service Not Available for Some Offenders—C.A.
Opinion Rejects Idea That Exclusion’s Cross-Reference to Section Governing ‘Prior’ Super Strikes Means That Relief Only Unavailable to Those With Qualifying History
By a MetNews Staff Writer
Div. Four of the First District Court of Appeal has held that a Penal Code section, which allows veterans to seek resentencing relief if a service-induced traumatic injury or substance abuse problem was not taken into account as a mitigating factor during the original sentencing hearing, does not apply if the defendant’s crime is a so-called “super-strike” offense.
Rejecting an assertion that a statutory exclusion for “a person convicted of, or having one or more prior convictions for” a super-strike offense only applies to those with a qualifying criminal history and not to defendants who are first-time offenders, the court said that, although “a textual hook…might support the argument,” such an interpretation is not supported by overall statutory language.
At issue is Penal Code §1170.91, which, as originally enacted, required courts to consider, as a mitigating factor for sentencing determinations, any “sexual trauma, traumatic brain injury, post-traumatic stress disorder, substance abuse, or mental health problems as a result of the defendant’s military service” if the defendant was charged with a crime for which a determinate sentence is authorized.
The law was expanded four years later to allow veterans to petition for resentencing “if the circumstance…was not considered as a factor in mitigation at the time of sentencing.” In 2022, the Legislature eliminated the determinate sentence requirement but added a new subdivision (c), providing:
“This section does not apply to a person convicted of, or having one or more prior convictions for, an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667.”
Sec. 667(e)(2)(C)(iv) lists certain so-called “super-strike” offenses, specifying that such category includes “a prior serious or violent felony conviction” for certain felonies “punishable in California by life imprisonment or death.”
Deadly Assault
Seeking resentencing relief under the section was Bryant Harrison, a military veteran who was sentenced in 1995 to 15 years to life in prison for committing a deadly assault on a child in violation of Penal Code §273ab, a crime that qualifies as a super strike under §667(e)(2)(C)(iv). The incident was allegedly his first felony offense.
In April 2024, he filed a request for resentencing under §1170.91, asserting that he suffered a traumatic brain injury and developed an alcohol problem during his military service, neither of which was considered at his original sentencing. Solano Superior Court Judge John B. Ellis denied the request without conducting a hearing.
Justice Jon B. Streeter authored the opinion, filed Wednesday and publicly released Thursday, affirming the denial, saying:
“Because of the disjunctive phrase ‘convicted of, or having one or more prior convictions’….the…language…indicates that…the Legislature chose to provide…that first-time super strikers as well as those with past super strike convictions are disqualified.”
He acknowledged tension with the legislative history accompanying the 2022 amendment, which indicated a desire to expand the ameliorative benefits of the section to those defendants who have been sentenced to life in prison, but reasoned that “[w]hile the…reading of section 1170.91…disqualifies those who committed particularly egregious strike offenses at any time…, it does not disqualify all indeterminately sentenced prisoners.”
Presiding Justice Tracie L. Brown and Justice Jeremy M. Goldman joined in the opinion.
Statutory Exclusion
Addressing Harrison’s assertion that the statute only excludes from resentencing eligibility those defendants who have suffered a past super strike conviction, Streeter said that the textual support for the argument comes from §667, saying:
“When we read section 1170.91 together with section 667, subdivision (e)(2)(C)(iv)—with its express reference to ‘prior’ convictions—arguably there is a basis to conclude that the words ‘convicted of’ in section 1170.91 may be read to mean defendant has suffered a prior super strike, not that his current conviction is a super strike.”
However, he continued:
“While this argument has some appeal at first blush, we are ultimately unpersuaded. Even if section 667, subdivision (e)(2)(C)(iv), when read independently, might lend some support to Harrison’s position, we remain convinced that the plain language of section 1170.91, subdivision (c), covers super strikes suffered by first-time offenders. The only plausible interpretation of the disjunctive phrase ‘convicted of, or having one or more prior convictions’ disqualifies him. On its face, section 1170.91, subdivision (c), covers defendants who are either ‘convicted of’ a super strike as a first offense, or who ‘hav[e] one or more prior’ super strike convictions suffered in some previous proceeding.”
The jurist added:
“Harrison’s argument to the contrary would require us to read ‘convicted of’ as meaning the same thing as ‘having one or more prior’ disqualifying convictions, which would make ‘convicted of’ surplusage….This we decline to do.”
As to the contention that the court’s reading would gut the legislative intent to allow veterans serving life sentences to seek relief under the section, he cited jurisprudence finding that §667(e)(2)(C)(iv) covers an offense that has a statutory punishment of life imprisonment or death but not one, like robbery, which carries a penalty capped at five years in prison. He wrote:
“A defendant sentenced to a Three Strikes life term for commission of robbery as a third strike would still be eligible for section 1170.91 resentencing.”
Streeter remarked:
“Unquestionably, there are numerous references in the legislative history to a desire to exclude recidivists from accessing the ameliorative benefits of section 1170.91 resentencing, and that concern is reflected in the language excluding those with ‘one or more prior convictions for’ a super strike. But what Harrison overlooks is that the enacted language codifies a more broadly stated concern: The Legislature intended anyone ‘convicted of’ a super strike at any time—including those with ‘prior convictions’ for such an offense—to be ineligible for section 1170.91 resentencing.”
The justice said that Ellis erred in not conducting a hearing on Harrison’s petition but declared that the failure was not prejudicial because “the undisputed fact of his 1995 conviction for assaulting his daughter with such force that it caused her death in violation of section 273ab renders him ineligible for resentencing relief as a matter of law.”
The case is People v. Harrison, A170760.
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