Filed 5/10/21 P. v. Bibbs CA2/7

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE,

Plaintiff and Respondent,

v.

CARL E. BIBBS II,

Defendant and Appellant.

 B306566

 (Los Angeles County

 Super. Ct. No. NA022376-02)

APPEAL from a judgment of the Superior Court of 

Los Angeles County, Robert J. Perry, Judge. Affirmed. 

David R. Greifinger, under appointment by the Court of 

Appeal, for Defendant and Appellant.

No appearance by Plaintiff and Respondent. 

___________
2

Carl E. Bibbs II, convicted of multiple serious felonies in 

2006, appeals the superior court’s order denying his 

postjudgment motion for recall of sentence and resentencing 

pursuant to Penal Code section 1170.91, subdivision (b).1 No 

arguable issues have been identified following review of the 

record by Bibbs’s appointed appellate counsel. We also have 

identified no arguable issues after our own independent review of 

the record and analysis of the contentions presented by Bibbs in 

his supplemental brief. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. Bibbs’s Conviction and Sentence

Bibbs was convicted in 1996 following a jury trial of 

three counts of aggravated kidnapping (§§ 209, subd. (b), 209.5, 

subd. (a)), five counts of rape in concert (§ 264.1), four counts of 

rape with a foreign object (§ 289, subd. (a)), two counts of 

first degree robbery (§ 211), second degree robbery (§ 211),

carjacking (§ 215, subd. (a)), assault with a firearm (§ 245, 

subd. (a)(2)), first degree burglary (§ 459) and grand theft of a 

vehicle (§ 487h, subd. (a)). The jury also found true firearm 

enhancements for 13 of the counts. The trial court sentenced 

Bibbs to three consecutive indeterminate life terms with the 

possibility of parole for the three aggravated kidnapping offenses 

plus a consecutive aggregate determinate term of 87 years on the 

remaining counts. (Sentences on several of the charges were 

stayed pursuant to section 654.)

2

1 Statutory references are to this code.

2 On May10, 2019, at the request of the California 

Department of Corrections and Rehabilitation, the court ordered 

preparation of an amended abstract of judgment to reflect the 
3

On May 3, 2019 Bibbs, representing himself, filed a motion 

in superior court for recall of sentence pursuant to 

section 1170.91. Bibbs cited Assembly Bill No. 865 (2017-2018 

Reg. Sess.), which, effective January 1, 2019, extended to all 

individuals currently serving a sentence for a felony conviction 

the potential benefits of section 1170.91, which has since 2015 

required courts to consider mental health and substance abuse 

problems stemming from military service as a mitigating factor 

when imposing a determinate sentence under section 1170, 

subdivision (b). Bibbs alleged he had served in the United States 

Army and the Army National Guard and attached service records 

indicating his periods of active and inactive duty. Bibbs

requested appointment of counsel. 

Bibbs’s motion was assigned to the trial court that 

originally sentenced Bibbs in 1996, as required by 

section 1170.91, subdivision (b)(1). The court appointed counsel 

for Bibbs; acknowledged that, as an honorably discharged 

veteran, Bibbs was entitled to consideration under 

section 1170.91; and scheduled a hearing on the motion. After 

several continuances at the request of appointed counsel to 

permit him to prepare, the court held a hearing on the motion on 

November 21, 2019. Bibbs’s counsel submitted on the court file. 

The court denied the motion, explaining, “I don’t think the 

defendant is entitled to relief under 1170.91, and I do not award 

him relief under that statute. I don’t think it was designed for 

someone in his position.” 

Bibbs filed a notice of appeal on January 21, 2020 that this 

court deemed timely.

proper Penal Code sections with respect to Bibbs’s multiple rape 

convictions.
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DISCUSSION

In accord with the procedures described in People v. Cole

(2020) 52 Cal.App.5th 1023, review granted October 14, 2020, 

S264278, we appointed counsel to represent Bibbs on appeal. 

After reviewing the record, appointed counsel filed a brief raising 

no issues. Appointed counsel advised Bibbs on January 7, 2021

that he had 30 days to submit a brief or letter raising any 

grounds of appeal, contentions or arguments he wanted the court 

to consider. We provided a similar notice to Bibbs on January 11, 

2021. 

On February 11, 2021 we received a three-page typed 

supplemental brief from Bibbs that argues prejudicial error 

occurred during this trial—matters not cognizable in his appeal 

from the order denying his motion for recall of sentence pursuant 

to section 1170.91—and contends his documented substance 

abuse while in the military is a mitigating factor that entitles

him to reconsideration of the sentence imposed in 1996. Bibbs’s 

argument for resentencing lacks merit.

Section 1170.91, subdivision (a), authorizes the court, when 

sentencing a felony defendant who is or was a member of the 

United States military, to consider as a factor in mitigation in 

imposing a determinate term sentence that the defendant “may 

be suffering from sexual trauma, traumatic brain injury, posttraumatic stress disorder, substance abuse, or mental health 

problems as a result of his or her military service.”

As amended by Assembly Bill No. 855, section 1170.91, 

subdivision (b)(1), provides, “A person currently serving a 

sentence for a felony conviction, whether by trial or plea, who is, 

or was, a member of the United States military and who may be 

suffering from sexual trauma, traumatic brain injury, post-
5

traumatic stress disorder, substance abuse, or mental health 

problems as a result of his or her military service may petition for 

a recall of sentence, before the trial court that entered the 

judgment of conviction in his or her case, to request resentencing 

pursuant to subdivision (a) if the person meets both of the 

following conditions: [¶] (A) The circumstance of suffering from 

sexual trauma, traumatic brain injury, post-traumatic stress 

disorder, substance abuse, or mental health problems as a result 

of the person’s military service was not considered as a factor in 

mitigation at the time of sentencing. [¶] (B) The person was 

sentenced prior to January 1, 2015. This subdivision shall apply 

retroactively, whether or not the case was final as of January 1, 

2015.”

Section 1170.91, subdivision (b)(3), which describes the 

hearing procedure for a veteran petitioning for recall of sentence, 

however, expressly provides, once the court determines the 

petitioner has satisfied the criteria in subdivision (b)(1), “the 

court may, in its discretion, resentence the person following a 

resentencing hearing.” That is, unlike some other ameliorative 

resentencing procedures recently enacted by the Legislature that

mandate relief if the petitioner satisfies the relevant criteria, 

relief under section 1170.91 is within the discretion of the court. 

The superior court in this case, familiar with the evidence at 

trial, concluded Bibbs should not be granted relief. Bibbs’s 

supplemental brief, which simply refers to the fact of his 

substance abuse, fails to provide any basis upon which we could 

conclude that decision constituted an abuse of discretion. 

Because no cognizable legal issues have been raised by 

Bibbs’s appellate counsel or by Bibbs or identified in our 

independent review of the record, the order denying the 
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postjudgment motions is affirmed. (See People v. Cole, supra, 

52 Cal.App.5th at pp. 1039-1040, review granted; see also People 

v. Serrano (2012) 211 Cal.App.4th 496, 503; see generally People 

v. Kelly (2006) 40 Cal.4th 106, 118-119; People v. Wende (1979) 

25 Cal.3d 436, 441-442.)

DISPOSITION

The postjudgment order is affirmed.

PERLUSS, P. J.

We concur:

SEGAL, J.

FEUER, J.