NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Defendant James L. Williams appeals from a judgment entered after a jury found him guilty of inflicting corporal injury to a cohabitant, a violation of Penal Code
We conclude the trial court committed no error, but due to an amendment in section 1170.9, defendant's eligibility for a mental health assessment must be determined. We vacate the sentence and remand for this determination.
The facts of the underlying offense are not at issue. On January 1, 2010, defendant pushed and choked his live-in girlfriend, Geraldine Mitchell.
At the sentencing hearing on May 4, 2010, defendant requested a hearing pursuant to former section 1170.9 to determine whether he suffered psychological problems as a result of military service. Former section 1170.9 directed the court to assess the mental condition of any veteran convicted of a criminal offense who alleges he or she committed the offense as a result of psychological problems "stemming from service in a combat theater in the United States military." (Former § 1170.9.) Defendant alleged he had been stationed at Fort Hood, Texas and Bremerhaven, Germany, from 1977 through 1979, and committed the offenses as a result of substance abuse and psychiatric problems stemming from his service.
The trial court found that neither Fort Hood nor Bremerhaven qualified as a combat theater, and thus denied defendant's request for a pre-sentencing mental health assessment. The court found defendant statutorily ineligible for probation absent unusual circumstances, found no unusual mitigating circumstances existed, and sentenced defendant to four years in prison.
Defendant timely appealed. After examination of the record, defendant's appointed counsel filed an opening brief raising no issues and asking this court to review the record. We did so, and on March 10, 2011, we requested further briefing on whether defendant's military service qualified him for assessment under section 1170.9. Both parties submitted supplemental briefs that we now consider.
Defendant contends the trial court erred when it refused to hold a pre-sentence hearing pursuant to former section 1170.9 and failed to consider whether his substance abuse problems made him eligible for probation. We reject both contentions. However, during the pendency of the appeal and before the judgment became final, section 1170.9 was amended, making defendant eligible for the provisions of section 1170.9, subdivision (a) pursuant to In re Estrada (1965) 63 Cal.2d 740, 746 (Estrada).
A. Section 1170.9
Section 1170.9 was enacted in 1982 to "offer the trial judge a meaningful alternative to either probation or imprisonment in the case of Vietnam veterans convicted of a felony who might otherwise be committed to state prison." (People v. Bruhn (1989) 210 Cal.App.3d 1195, 1198.) It authorized the court, in an appropriate case, to "commit such a defendant for a time period equal to the prison term to a federal facility for treatment for substance abuse or psychological problems resulting from Vietnam combat service." (Ibid.)
In 2006 the Legislature found section 1170.9 was "not sufficient to cover returning Iraq and Afghanistan veterans," and therefore amended the section "to extend the opportunity for alternative sentencing to all combat veterans, regardless of where or when those veterans served our country, when those veterans are found by the court to be suffering from" post-traumatic stress disorder (PTSD). (Stats. 2006, ch. 788, § 1(d & e).) Subdivision (a) of the 2006 version required a mental health assessment of any qualifying veteran convicted of a criminal offense who alleges he or she committed the offense as a result of psychological problems "stemming from service in a combat theater in the United States military."
The 2006 version of section 1170.9 was in effect at the time of defendant's sentencing here. It required a mental health assessment only of veterans who had served in a combat theater. Because no evidence suggested either Fort Hood or Bremerhaven was a combat theater at any time during defendant's alleged service, the trial court found defendant to be ineligible for a section 1170.9 evaluation. This was no error.
But effective January 1, 2011, subdivision (a) was amended to extend the availability of a mental health assessment to all military veterans regardless of whether they served in a combat theater.
The real question is whether the 2011 amendment to subdivision (a) should apply retroactively to defendant. We conclude it should.
When nothing indicates a contrary legislative intent, the general rule regarding retroactivity is set forth in Penal Code section 3, which provides that no part of the Penal Code is "retroactive, unless expressly so declared." "[I]n the absence of an express retroactivity provision, a statute will not be applied retroactively unless it is very clear from extrinsic sources that the Legislature or the voters must have intended a retroactive application." (Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1209.)
But Penal Code section 3 "is not a straitjacket" and "should not be followed blindly in complete disregard of factors that may give a clue to the legislative intent," even if the Legislature has not expressly stated that a statute should be applied retroactively. (Estrada, supra, 63 Cal.2d at p. 748.) Estrada created an exception to the general rule of prospective operation: "[W]here the amendatory statute mitigates punishment and there is no saving clause, the rule is that the amendment will operate retroactively so that the lighter punishment is imposed." (Ibid.) That is, it will apply to all judgments of conviction that are not yet final when the amendment goes into effect. (Id. at p. 744.) "When the Legislature amends a statute so as to lessen the punishment it has obviously expressly determined that its former penalty was too severe and that a lighter punishment is proper as punishment for the commission of the prohibited act. It is an inevitable inference that the Legislature must have intended that the new statute imposing the new lighter penalty now deemed to be sufficient should apply to every case to which it constitutionally could apply. The amendatory act imposing the lighter punishment can be applied constitutionally to acts committed before its passage provided the judgment convicting the defendant of the act is not final." (Id. at p. 745.)
The 2011 amendment to section 1170.9 mitigates punishment for defendants who suffer from mental health problems stemming from military service in a non-combat theater. It does so by a making mental health assessment available to them before sentencing and treatment programs available during probation. Before amendment, these protections were available only to defendants who served in a combat theater. The amendment thus falls within the scope of the Estrada rule.
Under the 2011 version of section 1170.9, defendant may be eligible for a mental health assessment pursuant to subdivision (a). True, defendant was not eligible for or placed on probation. But we do not read section 1170.9 to require that a trial court offer a mental health assessment to qualified veterans only when probation will be granted. Section 1170.9 was enacted in recognition of the fact that some of the brave men and women who serve in our nation's military may suffer grave consequences as a result of their service. The mandatory nature of subdivision (a) reflects the importance our society places on protecting these individuals. A court must seriously consider a defendant's allegations that he or she may qualify for the benefits provided by this section and should make every attempt to respect the process set out therein. Even if probation is ultimately denied, an assessment conducted pursuant to subdivision (a) cannot but help the trial court in its sentencing decisions and the Department of Corrections in its treatment choices.
B. Denial of Probation
Defendant contends the trial court abused its discretion when it denied probation, and thus his sentence must be vacated and the cause remanded for resentencing. We disagree.
"Probation is generally reserved for convicted criminals whose conditional release into society poses minimal risk to public safety and promotes rehabilitation. [Citations.] The sentencing court has broad discretion to determine whether an eligible defendant is suitable for probation and, if so, under what conditions." (People v. Carbajal (1995) 10 Cal.4th 1114, 1120.) But "[e]xcept in unusual cases where the interests of justice would best be served if the person is granted probation," the court has no discretion to grant probation to "[a]ny person who has been previously convicted twice in this state of a felony . . . ." (§ 1203, subd. (e)(4).)
To evaluate whether a case is unusual, i.e., whether the statutory limitation on probation can be overcome, the trial court applies criteria set forth in the California Rules of Court, rule 4.413 (Rule 4.413). (People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 830.) Rule 4.413 lists several potentially mitigating factors relating to defendant's recent criminal record: the seriousness of the current offense; the presence of provocation, coercion, or duress; and the defendant's age and mental condition. (Id. at (c).) But "`mere suitability for probation does not overcome the presumptive bar. . . . [I]f the statutory limitations on probation are to have any substantial scope and effect, "unusual cases" and "interests of justice" must be narrowly construed,' and rule 4.413 `limited to those matters in which the crime is either atypical or the offender's moral blameworthiness is reduced.' [Citation.]" (People v. Stuart (2007) 156 Cal.App.4th 165, 178.)
"`The standard for reviewing a trial court's finding that a case may or may not be unusual is abuse of discretion.' [Citation.] The trial judge's discretion in determining whether to grant probation is broad. . . . `[A] trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it.' [Citation.]" (People v. Stuart, supra, 156 Cal.App.4th at pp. 178-179.)
The probation report indicated defendant, age 51, had suffered 17 prior convictions in the last 31 years. Most recently, he was convicted of felony possession of a controlled substance in 2002, second degree burglary in 2003 (a felony), vandalism in 2007, battery on a peace officer in November 2008, and felony obstruction of an executive officer in December 2008. He was granted probation in 1981, 1991 (twice), 1996, 2000, 2001, 2002 (twice), and 2008 (twice). He violated probation eight times and parole once, and was on formal probation when the current offenses were committed.
On this record the trial court found defendant was presumptively ineligible for probation. The court then considered factors set forth in Rule 4.413. It stated, "[D]o the facts of this case make this an unusual case? It certainly does not. There was a similar factual situation in case No. SA069977 . . . the court taking judicial notice of that file, . . . and in that file . . . there was a condition of probation that Mr. Williams, quote, "`was not to use any force or violence, and, therefore, a protective order was issued on behalf of Ms. Mitchell,'" end of quote, and, in spite of that restraining order, obviously, Mr. Williams violated that restraining order . . . ." The court continued, "Then he suffered that conviction in 2003, for Penal Code section 459. So the court finds that there are no facts limiting defendant's culpability, that this is not an unusual case where the interest of justice would be best served by considering or granting probation."
Defendant argues a section 1170.9 hearing could have informed the trial court's Rule 4.413 deliberation and might have revealed that "[t]he crime was committed because of a mental condition not amounting to a defense, and there is a high likelihood that the defendant would respond favorably to mental health care and treatment that would be required as a condition of probation." (Rule 4.413(c)(2)(B).) He argues failure to hold a section 1170.9 hearing thus deprived him of an opportunity to establish facts that could have overcome his statutory ineligibility for probation. We disagree.
First, nothing prevented defendant from offering evidence that the crime was committed because of a mental health condition not amounting to a defense. But other than alleging his military service caused his substance abuse, which caused him to commit the instant offense, defendant offered no such evidence. Second, it is not the purpose of section 1170.9 to make veterans eligible for probation. When amending section 1170.9 in 2006 the Legislature expressly stated its intention was not "to expand probation eligibility for veterans who commit crimes pursuant to these provisions," but to ensure that judges are made aware of treatment programs that exist for veterans who are put on probation. (Stats. 2006, ch. 788, § 1(f)&(g).) Section 1170.9 thus requires a court to assess a veteran's service-related mental health problems only to determine whether treatment is appropriate during probation for which the veteran is otherwise eligible, not to discover evidence of probation eligibility.
The trial court thoroughly explored whether defendant's was an unusual case. The court relied on relevant criteria, including defendant's record of committing similar crimes (and crimes of violence), his recent incarceration, and his record of violating probation, before finding the case was "certainly . . . not" unusual. (Rule 4.413, (c)(1)(A) & (c)(1)(B).) Section 1170.9 does not require more. However, the trial court did not have the benefit of a psychological report under section 1170.9. At the time of sentencing, the court may exercise all sentencing options available.
The sentence is vacated. The trial court is directed to conduct a hearing before sentencing to determine whether defendant is a person described in subdivision (a) of section 1170.9 legally and consider all available sentencing options. In all other respects, the judgment is affirmed.
MALLANO, P. J.