Filed 8/3/23 P. v. Moon CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

JOSHUA DANIEL MOON,

Defendant and Appellant.

F085294

(Kings Super. Ct. 

No. 13CM2377HTA)

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Kings County. Robert Shane 

Burns, Judge.

Carlo Andreani, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Office of the Attorney General, Sacramento, California, for Plaintiff and 

Respondent.

-ooOoo-

* Before Hill, P. J., Poochigian, J. and Detjen, J.
2.

INTRODUCTION

In 2014, appellant and defendant Joshua Daniel Moon (defendant) was convicted 

after a jury trial of seven counts of committing sexual and assaultive offenses against his 

two minor children and sentenced to a determinate term of seven years plus an 

indeterminate term of 15 years to life in prison. In his direct appeal, this court reduced 

one felony conviction to a misdemeanor, ordered an allegation stricken, and remanded for 

resentencing. On remand, the trial court modified the sentence, and his aggregate term 

remained the same. On appeal from the remand, we affirmed the court’s resentencing 

order.

In 2022, defendant filed a petition in the trial court for resentencing pursuant to 

Penal Code1section 1170.91, subdivision (b), which permits individuals to petition for 

resentencing when certain military-related trauma was not considered as a mitigating 

factor at the time of sentencing. The trial court appointed counsel, reviewed defendant’s 

records, conducted a hearing, and denied the petition, finding defendant was not eligible 

for resentencing on the indeterminate sentences imposed for his convictions based on the 

statutory provisions, and he was not eligible or suitable for resentencing on the 

determinate terms imposed for the other offenses.

In this appeal from the court’s denial of defendant’s section 1170.91 petition, his 

appellate counsel filed a brief which summarized the facts with citations to the record, 

raised no issues, and asked this court to independently review the record. (People v. 

Wende (1979) 25 Cal.3d 436.) Defendant filed a letter brief raising certain issues. We 

affirm.

1 All further statutory citations are to the Penal Code unless otherwise indicated. 
3.

FACTS2

Defendant and K. were married in 2001 and were the parents of two children. At 

the time of defendant’s jury trial in 2014, M. was eight years old and her brother, J., was 

12 years old.

Defendant was in the military for most of the marriage. From June 2004 through 

April 2011, the family lived on the Naval Air Base (the Base) in Lemoore. From 

December 2004 through October 2008, they lived in a house with a red roof on Simmons 

Court. Between October 2008 and April 2009, K. and the children lived in Nevada, as 

she and defendant were having marital problems. In April 2009, K. and the children 

returned to defendant. From then until April 2011, the family lived on the Base in a 

house with a gray roof on Banshee Court.

K. and defendant separated in May 2012, after which K. and the children moved to 

Nevada. In her complaint for divorce filed October 3, 2012, K. requested sole physical 

custody of the children, with defendant to have supervised visitation. Under the terms of 

the final decree, which was filed February 27, 2013, K. and defendant received joint legal 

custody, while K. had primary physical custody. Defendant received supervised 

visitation. His visitation had to be set up at the house of one of his family members and 

to be arranged around K.’s work schedule and the children’s schedules. Visitation took 

place once or twice a month.

On March 6, 2013, J. told K. that defendant had abused J. and M. K. asked why J. 

waited so long to tell her about the abuse. J. said he was afraid of defendant. When K. 

observed defendant had been out of the house for several months, J. explained that with 

2 After notice to the parties, we have taken judicial notice of this court’s own 

records and nonpublished opinions in defendant’s direct appeal, People v. Moon (Jan. 9, 

2017, F069168 (Moon I)) and his appeal from the resentencing hearing, People v. Moon

(May 23, 2018, F076134 (Moon II)). The following facts and procedural history of 

defendant’s convictions are from these records. (Evid. Code, § 450, § 452, subd. (d), 

§ 59.)
4.

K. and defendant fighting so much and leaving and going back, J. was unsure if K. would 

go back to defendant again, so he needed to wait to be sure.

K. did not immediately report the abuse to authorities, because she wanted to wait 

for M. — who had confided in J. only a few days earlier — to come to her. On April 6, 

2013, J. apparently persuaded M. to talk to K. M. said defendant urinated in her mouth 

and then made her suck on his penis. M. said it happened once in Lemoore and once in 

Nevada.

The next day, April 7, 2013, K. went to the Lyon County Sheriff’s Department and 

made a report. Detective White subsequently interviewed both children.

Charged Acts Against M. (Counts 1–2 & 4–6)

On one occasion when the family lived in California in the house with the gray 

roof, M. was lying on her bed when defendant came into her room. He told her to get on 

the floor. He pulled down his pants and knelt over her, then he made her suck his penis. 

He told her it was just a dream, but she knew it was real. Defendant whispered to her not 

to tell anybody. M. said she had to go to the bathroom, but he would not let her. When 

she said she really needed to go, he told her to urinate in his mouth. She did, although 

she did not want to. Defendant then left the room, while M. got back in bed and went to 

sleep.

Defendant told M. not to tell anybody about the things he did. He said that if she 

told anyone, he would do it again. He told her this in Nevada and in California, after he 

put his penis in her mouth. In California, he specifically said she should not tell her 

mother or brother.

Detective White conducted a forensic interview with M. on April 16, 2013. M. 

disclosed that defendant had awakened her during the night and told her to lie back. He 

urinated in her mouth and then had her “suck it.” M. said this happened in California.

Kings County Sheriff’s Detective Speer interviewed M. on June 11, 2013. M. 

described an incident in California in which she sucked defendant’s penis, and he 
5.

urinated in her mouth. She described the urine’s color, odor, and taste (“eww”), and said 

she spit it in the toilet. M. said she was four or five when this happened. Speer found no 

indication M. had been coached.

Charged Acts Against J. (Counts 7 & 8)

During the time the family lived on Simmons Street, J. and defendant were sitting 

on the couch in the living room, watching television, when defendant told J. to lie down. 

Defendant lay on J. with his stomach on J.’s face. J. managed to kick him off, but 

defendant put a plastic bag over J.’s head and lay on him again. J. was unable to breathe. 

J. started kicking, and defendant got up. J. removed the plastic bag and ran into the 

garage, where he waited until K. and M. came home. J. did not tell his mother, because 

he was afraid defendant would hurt him again. A couple days after the incident, 

defendant said if J. told anybody, defendant would hurt J.

There was a swimming pool on the Base. Defendant told J. to jump off the diving 

board. J. did not want to, as he was not a good swimmer. Defendant kept telling J. to 

dive off the diving board, and eventually J. crouched down, crying. When the lifeguard 

asked J. if he knew how to swim and J. said no, defendant got very angry and said they 

were going home. Once they got home, defendant started yelling at J. and punching him 

with his fists. Defendant gave J. a black eye and pounded on his chest, causing painful 

bruises. Defendant said J. had embarrassed him in public. He told J. to tell people J. hit a 

pole or something. When J.’s friends and teachers asked, J. said he fell on a pole.

Uncharged Acts

During the marriage, defendant watched adult pornography that sometimes 

showed males urinating in females’ mouths or multiple females urinating on a single 

male. Defendant asked K. to watch these images. Sometimes, it led to sexual intercourse 

between defendant and K. Defendant also asked K. to view pornography depicting 

women sitting on men’s faces. Again, this sometimes led to defendant and K. having 

sexual intercourse. Sometimes when they were in the shower, K. would accede to 
6.

defendant’s request that she urinate in his mouth. Defendant also liked to urinate on K., 

but she did not like him to urinate in her mouth and tried to avoid it as much as she could. 

The urination happened a few times a week. It caused conflicts in the marriage, because 

defendant would get very angry with K. when she would not do it. She did not like doing 

it, although it did sometimes lead to sexual intercourse. Around 2005, defendant began 

restricting K.’s breathing once or twice a month as part of sexual intercourse. First, he 

put pillows over her face, then blankets. He then started using plastic grocery bags. 

When K. told him she was scared about not being able to breathe, defendant said he 

would never let anything happen to her.

One day, when the family lived on the Base and M. believed she was in 

kindergarten, she and defendant were home alone. M. was lying on her bed when 

defendant sat on her stomach, making it hard for her to breathe. M. felt scared, and her 

lower body hurt for a couple hours. Defendant told her not to tell anyone. Eventually, 

however, M. told one of her teachers. A lady came to the house and asked M. questions 

about what defendant did. M. did not tell what he had done, because, when the lady 

parked in front of the house, defendant told M. not to tell her.

Once, when the family lived in Nevada and M. was six years old, defendant sat on 

the couch while M. was on her knees on the floor. Defendant pulled down his pants and 

scooted close to her. She asked if she could play on the computer, but he said she had to 

suck his penis first. She did not want to, but he put his hands on the back of her head and 

pushed her head to his “private spot” and made her orally copulate him. After defendant 

put his penis in M.’s mouth, he urinated in her mouth. M. spit the urine out in the 

bathroom sink.

On another occasion in Nevada, defendant told M. to take off her pants and lie on 

defendant’s bed. Defendant then took off his pants and lay on M. His stomach, penis, 

and legs were touching her body, with his penis touching her “no-no square” on the 

outside. Defendant was moving his body and it felt “weird and scary.” The tip of his 
7.

penis went inside her “no-no square,” but nothing came out of his penis. Defendant’s 

face looked “frustrated and tired.”3

Defense Evidence

Manuela Wyatt, a representative of Kings County Child Protective Services, 

testified she went to defendant’s home in February 2010 in response to abuse allegations, 

and her purpose was to assess the situation and determine whether the allegations were 

true or unfounded. Wyatt was unable to determine if M. had been sexually abused.

Prior to the visit, Wyatt did not notify the family she was coming. She did not 

recall if she parked in front of the residence. K. answered the door in response to Wyatt’s 

knock. Defendant approached behind her. He had a blanket around him. The door was 

closed, as he said he needed to change. Defendant and K. went back inside the residence, 

while Wyatt and other agents remained outside. After about five minutes, defendant and 

K. returned to the door. Wyatt did not see defendant speak to M., although she was 

unable to see through the windows.

PROCEDURAL BACKGROUND

Jury Trial and Convictions

In February 2014, after a jury trial, defendant was convicted of committing the 

following offenses against M. between June 1, 2008, and April 30, 2011, as alleged in the 

first amended information: count 1, oral copulation with a child 10 years of age or 

younger (§ 288.7, subd. (b)); count 2, aggravated sexual assault of a child under age 14 

by a person more than seven years older than the victim (§ 269, subd. (a)(4)); counts 4 

and 6, lewd and lascivious acts on a child under age 14 by use of force, violence, duress, 

3 There was also evidence defendant sat on M.’s stomach and restricted her 

breathing, lay on top of her while his penis possibly slightly penetrated her vagina, and 

pushed her head to his penis. Although these acts were not charged, jurors were told they 

could consider uncharged oral copulation and lewd and lascivious acts with a minor as 

evidence defendant was disposed to commit sexual offenses, and so was likely to have 

committed the charged offenses.
8.

menace, and/or threat of great bodily harm (§ 288, subd. (b)(1)); and count 5, child abuse 

under circumstances likely to produce great bodily harm or death, to wit, urinating in 

M.’s mouth (§ 273a, subd. (a)).4

As to counts 4 and 6, the jury further found defendant committed the offenses by 

the use of force, violence, duress, menace, or fear of immediate and unlawful bodily 

injury (§ 1203.066, subd. (a)(1)), and that defendant had substantial sexual conduct with 

M. (id., subd. (a)(8)).

Appellant was also convicted of committing the following offenses against J. 

between March 6, 2007, and April 9, 2013, as alleged in the first amended information: 

count 7, misdemeanor child abuse (§ 273a, subd. (b)); and count 8, assault with a deadly 

weapon, to wit, a plastic bag (§ 245, subd. (a)(1)). As to counts 7 and 8, the jury found 

the statute of limitations was extended pursuant to section 803, subdivision (d), because J. 

and defendant were absent from the state.

The Probation Report5

The probation report prepared in 2014 for defendant’s sentencing hearing stated 

that he served in the United States Navy and was honorably discharged on June 1, 2011.

The probation report further stated that defendant (born 1983) reported he was 

diagnosed with dissociative disorder in 2007 and was taking antidepressants. Defendant 

reported he was diagnosed with posttraumatic stress disorder (PTSD) in 2007, and he was 

not under the care of any physician or taking medication for that condition.

4

In count 3, defendant was charged with forcible oral copulation against M., in 

violation of section 288a, former subdivision (c)(2). The jury did not return a verdict on 

this count because it was instructed the offense was charged in the alternative with 

count 2.

5 We are summarizing the 2014 probation report prepared for defendant’s 

sentencing hearing because, as will be explained below, the trial court expressly cited 

findings in that report when it addressed defendant’s section 1170.91 petition.
9.

Defendant stated was employed as a gas station cashier in 2011 through 2012 and

left the job “due to his disability interfering with work.” He received VA benefits until 

he was incarcerated.

Defendant reported that by the time he was 22 years old, he was a heavy consumer 

of liquor and beer. He drank approximately a 30-pack of beer per week and one bottle of 

liquor per week until 2012. He also used marijuana on a weekly basis until 2013.

Defendant gave a statement to the probation officer where he maintained his 

innocence, claimed his former wife was responsible for the charges as retaliation to an 

unfavorable divorce outcome, and insisted he never harmed his children.

The Sentencing Hearing

On March 27, 2014, Judge Robert Burns, who presided over defendant’s jury trial, 

conducted the sentencing hearing.

The court stated that defendant was not eligible for probation, but it would not 

grant probation even if he was eligible based upon the facts of the case because the 

crimes involved a high degree of cruelty and callousness.

As to the imposition of sentence, the court found defendant’s conduct of 

“urinating in a child’s mouth for sexual gratification ... occurring from the degradation of 

another human being seems to be particularly callous. And suffocating a child with a 

plastic bag to obtain sexual gratification from the fear you inflicted on the child seems ... 

to be particularly callous, as well as cruel towards that individual.” The court found 

defendant engaged in violent conduct and took advantage of his position of trust to 

commit the sexual and physical assaults against his children. The court intended to 

impose an aggregate term of seven years plus 15 years to life and would impose 

consecutive terms on certain counts because the crimes and objectives involved separate 

victims and acts of violence, that were committed on different occasions with 

independent criminal objectives, and defendant had a reasonable time to reflect on his 

conduct but continued to commit the offenses.
10.

Defense counsel asked the court to impose lower and/or concurrent determinate 

sentences for some of the convictions because defendant had no prior record, he was a 

veteran with an honorable discharge, and “[t]hat certainly does not make up for the acts, 

but he is also doing life in prison.”

The prosecutor replied defendant committed some of the most vile acts that could 

be done against his children over a significant period of time.

The court sentenced defendant to an aggregate term of seven years plus 15 years to 

life as follows: the midterm of six years for count 6, plus a consecutive term of one year 

(one-third the midterm) for count 8; followed by a consecutive term of 15 years to life for 

count 1.

The court imposed and stayed determinate terms for counts 4 and 5, and a 

concurrent term for misdemeanor count 7. The court also imposed 15 years to life for 

count 2 and stayed that term pursuant to section 654.

After imposing sentence, the court advised defendant that he was ordered to 

register as a sex offender pursuant to section 290 upon his release from custody.

Direct Appeal

On January 9, 2017, this court filed the nonpublished opinion in Moon I, supra, 

F069168, defendant’s direct appeal, and held the evidence failed to establish the act that 

formed the basis for count 5 was committed under circumstances likely to produce great 

bodily harm or death. We further held there was substantial evidence of duress presented 

to affirm the convictions on counts 2, 4, and 6, and the trial court was not required to stay 

the sentence on count 6. However, we concluded the substantial sexual conduct finding 

as to count 6 must be stricken.

We modified count 5 from felony to misdemeanor child abuse in violation of 

section 273a, subdivision (b); order the true finding on the section 1203.066, 

subdivision (a)(8) allegation stricken as to count 6; and remanded for resentencing.
11.

Remand for Resentencing

On June 29, 2017, Judge Burns conducted the resentencing hearing on remand. 

The court imposed one year in jail for misdemeanor count 5 and stayed that term 

pursuant to section 654. The court also ordered the substantial sexual conduct finding on 

count 6 stricken. Defendant’s sentence remained seven years plus 15 years to life.

Appeal After Resentencing

On May 23, 2018, this court filed the nonpublished opinion that affirmed the trial 

court’s order after resentencing. (Moon II, supra, F076134.)

We first rejected defendant’s attempts to raise issues regarding his jury trial and 

the sentences imposed on the other counts. As to the court’s orders at the resentencing 

hearing, defendant argued “he suffered from dissociative disorder, post-traumatic stress 

disorder, and sleep apnea, as diagnosed by the United States Navy. He asserts that the 

judge, prosecutor, and his defense attorneys all knew he suffered from these disabilities, 

but ‘nothing was done by any of them.” We held that to the extent defendant raised a 

claim of ineffective assistance “in failing to alert the resentencing court to defendant’s 

disabilities and pursue accommodations for defendant, defendant still must show that he 

was harmed by counsel’s failure – that is, he must show a reasonable probability that the 

resentencing would have been more favorable to him had counsel not failed in this 

regard. Defendant makes no such showing. He does not explain what accommodations 

he needed or wanted and how those accommodations would have changed the outcome 

of the resentencing. Under these circumstances, we have nothing upon which to 

conclude defense counsel was ineffective.” (Moon II, supra, F076134.)

DEFENDANT’S SECTION 1170.91 PETITION

On March 11, 2022, defendant filed, in pro. per., a petition in the trial court for 

resentencing pursuant to 1170.91, and for the court to determine whether he satisfied the 

statutory criteria of “being a member of the United States military who may be suffering 

from post traumatic brain injury, sexual trauma, substance abuse, or mental health 
12.

problems as a result of his military service, to consider that circumstances as a factor in 

mitigation when imposing a term pursuant to ... Section 1170.91.” Defendant submitted 

medical and military records in support of his petition.

The Court’s Initial Order

On May 26, 2022, Judge Burns, who presided over defendant’s trial and 

sentencing hearing, held the first hearing on defendant’s petition. The court stated 

defendant had “proffered documentation of his military service and associated disability,” 

and “it would presume, for purposes of this analysis, that defendant is a person described 

by Section 1170.91(a).”

The court denied the petition as to the indeterminate sentences imposed for 

counts 1 and 2, and the misdemeanor sentence for count 5, because section 1170.91 

excluded such terms from its resentencing provisions.

The court held that under section 1170.91, defendant was potentially eligible for 

resentencing as to the determinate terms imposed for counts 4, 6, and 8. The court 

appointed counsel for defendant and set the matter for a further hearing.

Further Proceedings

On August 5, 2022, the court held another hearing on the petition, and stated 

defendant sought resentencing because the court “did not consider trauma associated with 

his military service as a mitigating factor at the original sentencing in 2014.”

The court further stated that a fully updated sentencing report was not required 

unless requested by one of the parties, and the original probation report appeared to be 

sufficient. The court directed the probation department to review the supplemental 

mitigating factors raised by defendant, and for a letter of judicial notice addressing those 

factors. The parties agreed on both matters.

The Probation Department’s Evaluation

On August 25, 2022, the probation department filed a “Letter of Judicial Notice” 

with the trial court, that reviewed and summarized defendant’s military service and 
13.

medical records, to address “any mitigating factors” related to PTSD “as a result of 

military service.”

The report concluded that based upon the review of defendant’s military and 

medical records, his “Chronic PTSD was not caused by his military service, given the 

defendant was honorably discharged from service for mental health conditions deemed 

not combat related. Furthermore, the medical records do not provide thorough 

information to suggest otherwise. Therefore, it does not appear the defendant’s Chronic 

PTSD qualifies as a mitigating factor.” (Italics added.)

On September 2, 2022, the court provides the parties with the probation 

department’s letter of judicial notice and report and set a hearing on the merits of 

defendant’s petition.

The Court’s Hearing on the Petition

On September 15, 2022, the court convened the hearing and stated it had reviewed 

defendant’s petition, and the attached medical and military reports.

The prosecutor argued the petition should be denied because defendant’s medical 

and military records did not establish his “anxiety and memory loss were caused by his 

military service,” and “the mental health issues don’t appear to be directly related to the 

crimes that were committed.” The records shows that defendant joined the Navy in 2003. 

Defendant and his wife were married in 2001, defendant began engaging in acts against 

his wife at that time, and these acts escalated to the offenses committed on his children 

over a long period of time. “Nothing indicates that there was some sort of mental health 

break that occurred and then resulted in the crimes. They were escalating from the 

marriage beginning in 2001 through 2011, even before the military service began in 

2003. And so the People believe that that shows that the mental health issues that 

presented in the records did not relate to the crimes or caused the crime as it appears that 

they began even before the mental health records began in 2003.” Defense counsel 

submitted the matter.
14.

Denial of the Petition

The court stated it was denying defendant’s petition for resentencing as to the 

determinate sentences imposed for his convictions because he was “neither eligible nor 

suitable” under section 1170.91.

“[I]t appears from the records that the [D]epartment of the Navy discharged 

[defendant] for a service connected condition ... of other specified trauma 

and stress disorder, and unspecified dissociative disorder, which previously 

had been characterized as an anxiety disorder not otherwise specified. It 

indicated that he was 50 percent disabled, and that determination was based 

upon his forgetting names, having a difficulty in adapting to stressful 

circumstances, difficulty in adapting to work, depressed mood, difficulty in 

adapting to a work-like setting... There is nothing in the documentation 

from the military provided to the Court that indicates that any of that was 

as to the statute says was a result of his military service. In fact, the only 

factual description the Court could find in the records was from a report 

from [November 2007] that indicates that [defendant] was suffering 

memory loss and depression, and that he had indicated that he had a long 

history of abuse. Stating that in his childhood his father was incarcerated 

for attempted murder and robbery, and shortly thereafter was sent to a 

forensic psychiatric unit and that his mother had numerous boyfriends who 

were physically abusive to her and [defendant]. And that he at the age of 

... 15 years old indicated he attempted suicide by taking an overdose of 

Ritalin, and then indicated at the age of 16 he was raped by a female cousin 

resulting in her pregnancy for which he now pays child support.

“All of that occurred before the age of 16 ... which would be long 

before his military service. And if you read the statute itself the statute says 

the Court has to consider the mitigating factor when the mental health 

problem that is being addressed [in] section 1170.91 [was] as a result of his 

or her military service. There is nothing presented in the records that 

suggests his mental health issues were a result of his military service ....” 

(Italics added.)

The court further held that even if defendant was eligible, it was not suitable for 

the court to exercise its discretion to resentencing him:

“[T]here is nothing in the reports provided that suggest how that mental 

health issue would be related to his conduct in any form or manner in the 

crimes that were committed in this case. There is nothing about forgetting 

names or having a difficulty adapting to stress or difficulty adapting to [his] 
15.

work schedule, those sort of things that have any relationship to sexually 

assaulting children or a spouse, or physically abusing children or a spouse. 

And there is nothing related in the reports provided to the Court that would 

suggest some sort of causal connection that would diminish [defendant’s] 

culpability for the crimes that he committed based upon those factors.” 

(Italics added.)

On November 9, 2022, defendant filed a timely notice of appeal from the court’s 

order that denied his section 1170.91 petition for resentencing.

DISCUSSION

As noted above, defendant’s counsel filed a Wende brief with this court on 

April 14, 2023. The brief also includes the declaration of appellate counsel indicating 

that defendant was advised he could file his own brief with this court. By letter on the 

same day, we invited defendant to submit additional briefing. As will be discussed 

below, defendant submitted a letter briefing raising issues regarding the denial of his 

section 1170.91 petition, and has also attempted to raise issues regarding his trial and 

original sentencing.

I. Section 1170.91

We begin with the provisions of section 1170.91, which was enacted in 2014 and 

became effective on January 1, 2015. (People v. King (2020) 52 Cal.App.5th 783, 788; 

People v. Sherman (2023) 91 Cal.App.5th 325, petn. for review pending, petn. filed June 

15, 2023 (Sherman).) “The original statute merely required courts to consider as a 

mitigating factor for determinate sentencing certain specified qualifying conditions the 

defendant may be suffering as a result of his or her military service – sexual trauma,

traumatic brain injury, posttraumatic stress disorder, substance abuse, or mental health 

problems. [Citations.] As amended, this sentencing provision is now contained in 

section 1170.91, subdivision (a).” (Sherman, supra, at p. 329.)

“In 2018, the Legislature added subdivision (b) to section 1170.91. 

Subdivision (b) authorizes retrospective relief for previously sentenced criminal 

defendants who may suffer from one of the qualifying conditions as a result of their 
16.

military service. As originally enacted, subdivision (b) allowed a defendant who was 

sentenced before January 1, 2015 to petition the court for a recall of the sentence and 

request resentencing ‘pursuant to subdivision (a)’ if his or her qualifying condition ‘was 

not considered as a factor in mitigation at the time of sentencing’ [Citation.] Like 

subdivision (a), subdivision (b) originally applied only to defendants who were eligible 

for determinate sentences.” (Sherman, supra, 91 Cal.App.5th at p. 329.)

“In 2022, the Legislature amended the statute again,” effective on January 1, 2023. 

(Sherman, supra, 91 Cal.App.5th at p. 330.) The amendment “both expanded and 

restricted eligibility for relief. In relevant part, it expanded subdivisions (a) and (b) to 

include those serving indeterminate sentences; it eliminated the requirement that the 

defendant must have been sentenced before January 1, 2015, to be eligible for 

resentencing; and it added a provision explicitly stating that subdivision (b) ‘shall apply 

retroactively’ [citation]. At the same time, however, it restricted eligibility by adding 

subdivision (c), a carve-out provision stating that ‘[t]his section does not apply to a 

person convicted of, or having one or more prior convictions for, an offense specified in 

clause (iv) of paragraph (C) of paragraph (2) of subdivision (e) of Section 667 or an 

offense requiring registration pursuant to subdivision (c) of Section 290.’ ” (Ibid., italics 

added.)

The 2023 amendment thus expressly excludes a person having a conviction 

requiring a sex offender registration from relief under section 1170.91, and makes the 

exclusion retroactive. This exclusionary language has been interpreted to be retroactive 

to cases pending on appeal. (Sherman, supra, 91 Cal.App.5th at pp. 330–331.)

As amended, there is a three-step process for a prisoner who seeks resentencing 

under section 1170.91. First, the prisoner files a petition for resentencing to allege he or 

she “may be suffering” from military service-related trauma. (§ 1170.91, subd. (b)(1).) 

Second, the trial court must hold a hearing to determine whether the petitioner “satisfies 

the criteria,” meaning the person suffers trauma “as a result of the person’s military 
17.

service” and the other statutory provisions. (Id. at subds. (b)(1), (b)(3), (c).) Third, “[i]f 

the person satisfies the criteria, the court may, in the interest of justice,” resentence the 

petitioner. (Id. at subd. (b)(3).)

II. The Trial Court’s Denial of Defendant’s Petition

When defendant filed his petition in pro. per., the trial court complied with section 

1170.91 in addressing his allegations. The matter was assigned to Judge Burns, who 

presided over defendant’s jury trial in 2014. (§ 1170.91, subd. (b)(2).) The court 

appointed counsel for defendant, provided time for briefing from the parties and a report 

on defendant’s medical and military records, and conducted hearings as to whether 

defendant met the statutory criteria. (Id. at subd. (b)(3).)

In his letter brief, defendant asserts he was eligible for resentencing under 

section 1170.91 because his records show his conditions of PTSD, Dissociative Disorder 

(NOS) and “Moderate Sleep Apnea,” and his commission of the offenses in this case, 

were “service connected.” Defendant further argues the trial court could not rely on the 

nature of his convictions to deny his petition, he presumed his prison records were 

already available to the court, and the court failed to consider his positive performance in 

prison.

Based on the statutory provisions that were applicable at the time of the hearings 

in 2022, the trial court correctly found that defendant was ineligible for resentencing on 

the indeterminate sentences imposed for counts 1 and 2, and that he made a prima facie 

case for resentencing on the counts for which he received determinate terms. (See People 

v. Estrada (2020) 58 Cal.App.5th 839, 842–843.) Thereafter, the court conducted an 

evidentiary hearing where it reviewed defendant’s medical and military records, and 

concluded he was neither eligible nor suitable for resentencing on the determinate 

sentences imposed for his convictions under section 1170.91.

We find the trial court did not abuse its discretion in denying defendant’s petition. 

The court acknowledged the information in defendant’s records, but also found 
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defendant’s mental health complaints began long before he joined the military. The court 

further stated that even if it found defendant was eligible for resentencing, the nature of 

defendant’s repetitive and callous crimes committed against his children, over a long 

period of time, overwhelmed any mitigating factors so that he was not suitable for 

resentencing. The court noted that defendant’s callous behavior began shortly after he 

married K., which was before he joined the military, and he continued to engage in this 

behavior up to the time of his arrest in this case.

“[T]here is nothing in the reports provided that suggest how that mental 

health issue would be related to his conduct in any form or manner in the 

crimes that were committed in this case. There is nothing about forgetting 

names or having a difficulty adapting to stress or difficulty adapting to [his] 

work schedule, those sort of things that have any relationship to sexually 

assaulting children or a spouse, or physically abusing children or a spouse. 

And there is nothing related in the reports provided to the Court that would 

suggest some sort of causal connection that would diminish [defendant’s] 

culpability for the crimes that he committed based upon those factors.” 

(Italics added.)

The court did not abuse its discretion when it found defendant was not suitable for 

resentencing on the determinate terms based upon the version of section 1170.91 that 

existed at the time of the hearing on his petition.

III. Application of the Amended Statute

In his letter brief, defendant asserts that since the trial court conducted the hearing

on his petition in 2022, prior to the effective date of the amendment to section 1170.91 

that became effective on January 1, 2023, it improperly applied the “categorical 

disqualification for eligibility” of certain offenses to his petition.

As explained above, the trial court applied the version of section 1170.91 that 

existed at the time of the hearings on defendant’s petition in 2022. It did not find that 

defendant was categorically ineligible for resentencing because he was ordered to register 

as a sex offender. Instead, the court found that defendant was ineligible for resentencing 

on counts 1 and 2 because he was sentenced to indeterminate terms on those convictions, 
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consistent with the then-applicable version of section 1170.91. (See People v. Estrada, 

supra, 58 Cal.App.5th at pp. 842–843.) It then declined to exercise its discretion as to the 

determinate terms, finding he was neither eligible nor suitable for resentencing.

Also as explained above, however, the amendment to section 1170.91, effective 

January 1, 2023, eliminated the exclusion for indeterminate sentences and, at the same 

time, “restricted eligibility” by adding “a carve-out provision stating that ‘[t]his section 

does not apply to a person convicted of ... an offense requiring registration pursuant to 

subdivision (c) of Section 290.’ (§ 1170.91, subd. (c).)” (Sherman, supra, 

91 Cal.App.5th at p. 330.) This provision has been held retroactive to cases such as the 

instant one, that was pending on appeal at the time the amendment became effective. 

(Ibid.)

Defendant was convicted of seven offenses, including count 1, oral copulation 

with a child 10 years of age or younger (§ 288.7, subd. (b)); count 2, aggravated sexual 

assault of a child under age 14 by a person more than seven years older than the victim 

(§ 269, subd. (a)(4)); and counts 4 and 6, lewd and lascivious acts on a child under age 14 

by use of force, violence, duress, menace, and/or threat of great bodily harm (§ 288, 

subd. (b)(1)).)

Section 290, subdivision (c)(1), states that every person convicted of certain 

offenses, including violations of section 288.7, section 269, and section 288, “shall” 

register as a sex offender. At defendant’s sentencing hearing, the court stated he was 

ordered to register as a sex offender pursuant to section 290 upon his release from 

custody. As a result, defendant is categorically ineligible for resentencing.

As a separate matter, the current version of section 1170.91, subdivision (c) states 

that a defendant is also categorically ineligible for resentencing if “convicted of, or 

having one or more prior convictions for, an offense specified in clause (iv) of paragraph 

(C) of paragraph (2) of subdivision (e) of Section 667....” (§ 1170.91, subd. (c), italics 

added.) This phrase refers to “super-strike offenses” defined in section 667, subdivision 
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(e)(2)(C)(iv). (Sherman, supra, 91 Cal.App.5th at p. 328.) An offense included in that 

list is “[a] lewd or lascivious act involving a child under 14 years of age, in violation of 

Section 288.” (§ 667, subd. (e)(2)(C)(iv)(III).) Defendant was convicted in counts 4 and 

6 of violating section 288, subdivision (b)(1), committing lewd and lascivious acts on a 

child under age 14 by use of force, violence, duress, menace, and/or threat of great bodily

harm. There is thus a second reason why defendant is categorically ineligible for 

resentencing.

Defendant argues his case is similar to the facts addressed in People v. Coleman

(2021) 65 Cal.App.5th 817, where the matter was remanded for the trial court to 

reconsider a section 1170.91 petition for resentencing. However, Coleman addressed the 

version of section 1170.91 that was applicable in 2019 and 2021. As we have explained, 

however, defendant is now categorically ineligible for resentencing as a result of the 

amendment to section 1170.91, subdivision (c), which is retroactive to cases pending on 

appeal.

IV. Defendant’s Additional Issues

Finally, defendant’s letter brief raises numerous issues regarding his jury trial and 

sentencing hearing in 2014.

Defendant claims his trial attorney was prejudicially ineffective because prior to 

his jury trial, defendant allegedly informed counsel his alleged mental disabilities, his 

“memory loss” meant that he could not remember if he actually committed the charged

offenses, counsel never investigated these issues or tried to negotiate a plea agreement, 

and defendant made several pretrial motions pursuant to People v. Marsden (1970) 

2 Cal.3d 118 because of these alleged conflicts.

Defendant asserts the transcripts of his pretrial Marsden hearings show that his 

trial counsel failed to communicate information about his alleged memory disorder 

during plea negotiations to explain why defendant was unable to plead “guilty,” and that 

he would have been willing to plead “no contest,” but counsel failed to accommodate his 
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limitations. Defendant further argues he wanted his counsel to raise these issues before 

the jury. Defendant asserts the court should have been aware of the discussions at his 

pretrial Marsden hearings and considered these matters when he ruled on his section 

1170.91 petition. Defendant concludes that as a result of these errors, this court must 

vacate the entirety of the judgment against him and allow him to renegotiate an 

agreement for a “no contest” plea to the charges filed against him.

In addition, defendant asserts certain witnesses who testified at his jury trial were 

not credible because they were impeached, and the trial court improperly relied on such 

evidence when it denied his petition for resentencing.

Defendant challenges the court’s original sentencing decisions in 2014 and asserts 

certain terms either should have been imposed concurrently or stayed pursuant to 

section 654, because he lacked any capacity for reflection when he committed the 

charged offenses. Defendant further argues the court’s original sentencing decisions 

were improper because it relied on the probation report’s conclusion that he did not show 

remorse for his crimes, but defendant was unable to show remorse because he lacked

“knowledge” as to whether he actually committed the crimes because of his memory 

problems.

We decline to address these complaints because defendant’s contentions about the 

court’s pretrial rulings, his jury trial, the credibility of witnesses, and the court’s 

sentencing decisions in 2014 are not cognizable in the instant appeal since the validity of 

defendant’s long-final judgment was not before the trial court. (See, e.g., People v. 

Stewart (2021) 66 Cal.App.5th 416, 424, 427; § 1170.91, subd. (b)(8) [“This subdivision 

does not diminish or abrogate the finality of judgments in any case not falling within the 

purview of this subdivision”].) In addition, any claims of ineffective assistance allegedly 

based on counsel’s conduct during pretrial proceedings, defendant’s jury trial, and his 

sentencing hearing are more appropriately made in a habeas corpus proceeding. (People 

v. Wilson (1992) 3 Cal.4th 926, 926.)
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After independent review of the record, we find that no reasonably arguable 

factual or legal issues exist.6

DISPOSITION

The court’s order of September 15, 2022, denying defendant’s section 1170.91 

petition, is affirmed.

6

In his letter brief, defendant seeks to “preserve any and all issues under appeal 

for review in federal court” based on his alleged disabilities. We note defendant’s 

statement.