People v. Harrison

Filed 12/10/25

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent, A170760

v. (Solano County

BRYANT EUGENE HARRISON, Super. Ct. No. WR2400393)

Defendant and Appellant.

Defendant Bryant Eugene Harrison, a military veteran, was sentenced

in 1995 to an indeterminate life sentence for assaulting and causing the

death of a child under Penal Code section 273ab. 1 The offense was his first

and only felony conviction. In 2024, Harrison filed a resentencing petition

under section 1170.91, which allows a trial court to consider reducing the

sentence of qualified military veterans who may have suffered from service-

related conditions. He now appeals from the trial court’s summary denial of

that petition.

The narrow issue presented here is whether Harrison was entitled to a

hearing on his petition. Contending that the legislative history of the

amendment to section 1170.91 in 2022 shows that a major purpose of the

Legislature was to expand the statute’s benefits to indeterminately sentenced

defendants, Harrison argues he was entitled to a hearing under section

1 Undesignated statutory references are to the Penal Code.

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1170.91. The People disagree. They see no need to consider legislative

history and instead rely on the text of section 1170.91, subdivision (c),

arguing it unambiguously excludes Harrison under an eligibility carveout

that excludes anyone who has committed an offense described by section 667,

subdivision (e)(2)(C)(iv), which lists so-called “super strike” offenses for

purposes of the “Three Strikes” law.

The People’s argument rests on a simple premise: Harrison’s 1995

conviction for violating section 273ab was a violent and serious offense for

which an indeterminate life sentence was imposed. And since, as such, the

offense qualifies as one described by section 667, subdivision

(e)(2)(C)(iv)(VIII), Harrison is ineligible for resentencing under the

unambiguous terms of section 1170.91, subdivision (c), because he has been

“convicted of” a super strike.

Harrison’s rejoinder, offered in reply, is that section 1170.91,

subdivision (c) covers only Three Strikes offenders. He claims he “was only

convicted of one felony, which itself carried an indeterminate life sentence[,]”

and his “indeterminate life sentence is not the result of the Three Strikes

Law in any way.” “Consequently,” he contends, “he is not rendered ineligible”

by section 1170.91, subdivision (c).

We agree with the Attorney General. Although, on its face, Harrison’s

resentencing petition adequately pleaded resentencing eligibility, any error

in failing to hold a hearing was not prejudicial because the undisputed facts

shown by his record of conviction demonstrate he is ineligible for

resentencing under section 1170.91 as a matter of law.

I.

In 1995, Harrison, then 36 years old, was convicted of one count of

violating section 273ab for assaulting his four-month-old daughter, causing

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her death. Pursuant to former section 273ab, he was sentenced to a state

prison term of 15 years to life. 2 The record does not show, and the People do

not contend, that Harrison had any other felony conviction prior to his section

273ab conviction. A 1995 unverified probation report Harrison submitted

below states only, “The defendant does have a prior record, consisting mostly

of DUI’s . . . .”

In February 2024, Harrison, representing himself from state prison,

filed a petition for a writ of habeas corpus (habeas petition), asserting two

grounds for relief and citing section 1170.91. First, he contended he had

suffered a traumatic brain injury while on duty in the United States military,

which injury was not considered as a mitigation factor in his sentencing.

Second, he contended he had suffered from substance abuse, specifically

alcohol, from the time he enlisted in the military in 1976 until some years

after his time in the service, in 1990, which abuse also was not considered as

a mitigation factor in his sentencing.

In April 2024, the trial court denied Harrison’s habeas petition on the

ground that habeas corpus relief was not available when a plain, speedy, and

adequate remedy was provided by law—in Harrison’s case, by section

1170.91. The court acknowledged Harrison had attached to his habeas

petition a form petition for resentencing pursuant to section 1170.91, but

ruled he was required to file it separately with the court.

A few weeks later, still in April 2024, Harrison, again representing

himself from state prison, filed what he styled as an “Addendum for

Resentence.” He stated in its first paragraph that this filing was intended as

a petition for resentencing under section 1170.91 based on health conditions

2 Section 273ab has since been amended to provide for a sentence of 25

years to life. (§ 273ab, subd. (a); Stats. 1996, ch. 460, § 2, p. 2814.)

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due to military service (resentencing petition). He again attached, among

other things, a form petition for that purpose. On this form petition, he again

alleged as relevant health conditions traumatic brain injury and substance

abuse and that the sentencing judge did not consider these health conditions

as a factor in deciding his sentence.

On April 26, 2024, without conducting a hearing on Harrison’s

resentencing petition, the court denied what it characterized as Harrison’s

“addendum petition for resentencing pursuant to . . . section 1170.91 (a) and

(b).” The court’s brief denial order says, “The defendant has failed to state a

prima facie case for the relief sought” and provides no further explanation.

This timely appeal followed.

II.

Harrison argues we should reverse the trial court’s orders denying both

his habeas and resentencing petitions because the trial court erred by failing

to deem them petitions for resentencing under section 1170.91 and conduct a

public hearing as required by that statute. He contends his filing of section

1170.91 form petitions as part of his habeas and resentencing petitions was

sufficient to meet the statutory requirements of section 1170.91 and establish

a prima facie case for relief under section 1170.91.

The People contend the trial court did not err because Harrison is

statutorily ineligible for resentencing relief under section 1170.91. According

to them, subdivision (c), which was added in 2022 along with other

amendments to section 1170.91, excludes Harrison from section 1170.91’s

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benefits because his 1995 conviction is on a cross-referenced list of

disqualifying offenses under section 667, subdivision (e)(2)(C)(iv). 3

Harrison disagrees, contending that section 1170.91, subdivision (c), by

its cross reference to section 667, subdivision (e)(2)(C)(iv)—which is a

creature of the Three Strikes law—excludes only those persons convicted

under the Three Strikes law’s super strike provisions. For this interpretation

of section 1170.91, Harrison relies on section 1170.91’s legislative history, as

noted above.

For the reasons explained below, we reject Harrison’s argument and

agree with the People.

A.

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-traumatic stress disorder,

substance abuse, or mental health problems as a result of the person’s

military service may petition for a recall of sentence, before the trial court

that entered the judgment of conviction in the case, to request resentencing if

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

3 Section 667, subdivision (e)(2)(C)(iv), is part of the Three Strikes law.

(See Stats. 1994, ch. 12, § 1, p. 71, adding Pen. Code, § 667, subds. (b)–(i);

Prop. 184, § 1, as approved by voters, Gen. Elec. (Nov. 8, 1994), adding Pen.

Code, § 1170.12.) The Three Strikes law governs when it is pled and proved

that a defendant convicted of a felony has been previously convicted of one or

more felonies defined as serious or violent. (Pen. Code, §§ 667, subd. (c),

1170.12, subd. (a); see id., §§ 667, subds. (d), (e), (f), 1170.12, subds. (b), (c),

(d).)

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mitigation at the time of sentencing.” Section 1170.91, subdivision (b)(3)

provides, “Upon receiving a petition under this subdivision, the court shall

determine, at a public hearing held after not less than 15 days’ notice to the

prosecution, the defense, and any victim of the offense, whether the person

satisfies the criteria in this subdivision.” 4 (Italics added.) In People v.

Bonilla-Bray (2020) 49 Cal.App.5th 234, the panel reversed a summary

denial of a proper petition for failure to conduct such a hearing. (Id. at pp.

237–238.)

Here, as in Bonilla-Bray, the court appears to have been required to

proceed to a public hearing under section 1170.91, subdivision (b)(3), based

on the form petition Harrison filed. Although the trial court did not explain

why it concluded that Harrison failed to make a prima facie case, the proper

procedural sequence laid out in section 1170.91, subdivision (b)(3), calls for a

public hearing. Notably, the statute does not require an evidentiary hearing.

It simply requires a “public hearing” on 15 days’ notice to interested parties

at which a “determin[ation]” of entitlement will be made. Such a hearing was

4 Section 1170.91, subdivision (b)(3) specifically provides, “At that

hearing, the prosecution shall have an opportunity to be heard on the

petitioner’s eligibility and suitability for resentencing. If the person satisfies

the criteria, the court may, in the interest of justice, and regardless of

whether the original sentence was imposed after a trial or plea, do either of

the following:

“(A) Reduce the defendant’s term of imprisonment by modifying the

sentence.

“(B) Vacate the conviction and impose judgment on any necessarily

included lesser offense or lesser related offense, whether or not that offense

was charged in the original pleading, and then resentence the defendant to a

reduced term of imprisonment with the concurrence of both the defendant

and the district attorney of the county in which the defendant was sentenced

or by the Attorney General if the case was originally prosecuted by the

Department of Justice.”

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mandatory here, even if it took only a minute or two to put some procedural

deficiency in the petition on the record as the ground for denial.

But that still leaves the issue of prejudice. We may affirm if it can be

shown that the summary denial of Harrison’s petition was harmless. (Cf.

People v. Lewis (2021) 11 Cal.5th 952, 973 [failure to appoint counsel as

required by former § 1170.95 was state law error, reviewable for

harmlessness under People v. Watson (1956) 46 Cal.2d 818].) Courts have

applied Watson prejudice analysis in this very procedural context. In People

v. King (2020) 52 Cal.App.5th 783, the panel held that, assuming the trial

court erred in summarily denying a petition rather than holding a hearing,

the error was harmless because King, having agreed to a stipulated sentence

when he was convicted, was not entitled to relief under section 1170.91 as it

was constituted at that time. (King, at pp. 789–791, accord, People v. Brooks

(2020) 58 Cal.App.5th 1099, 1108–1109.)

Even assuming Harrison is right that he adequately pleaded his

eligibility for resentencing, he cannot show prejudice 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.

B.

Section 1170.91 entitles qualifying military veterans to seek

resentencing for the purposes of considering whether the veteran suffered

brain trauma, substance abuse, and various other mitigating conditions in

the course of military service. (People v. Estrada (2020) 58 Cal.App.5th 839,

841.) In 2022, the Legislature amended section 1170.91 in a number of

significant ways, including by bringing within its purview defendants serving

indeterminate sentences and adding a section excluding certain defendants

from the statute’s benefits. These amendments and the prior history of

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section 1170.91 were summarized concisely by a Fourth District, Division

One panel in People v. Sherman (2023) 91 Cal.App.5th 325, as follows.

“Section 1170.91 was enacted in 2014. 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.

(Former § 1170.91, added by Stats. 2014, ch. 163, § 2, eff. Jan. 1, 2015;

[citation].) As amended, this sentencing provision is now contained in section

1170.91, subdivision (a).

“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 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.’ (Former § 1170.91, subd. (b)(1)(A), as

amended by Stats. 2018, ch. 523, § 1, eff. Jan. 1, 2019.) Like subdivision (a),

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

determinate sentences. [Citation.]

“In 2022, the Legislature amended the statute again. (Stats. 2022,

ch. 721, § 1, eff. Jan. 1, 2023.) The 2022 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

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stating that subdivision (b) ‘shall apply retroactively’ (§ 1170.91, subd.

(b)(10)). 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.’ (§ 1170.91, subd. (c).) These changes became effective on

January 1, 2023.” (People v. Sherman, supra, 91 Cal.App.5th at pp. 329–

330.)

To this summary drawn from Sherman, we add a structural

observation. Section 1170.91 consists of three different subdivisions. The

first, subdivision (a), authorizes the trial court to consider service-related

mitigation factors when newly sentencing eligible military veterans who have

just been convicted of an offense but in the same proceeding. 5 The second,

subdivision (b), authorizes the trial court to rely on service-related mitigation

factors to resentence eligible military veterans post-judgment. 6 The third,

5 Subdivision (a) states:“If the court concludes that a defendant

convicted of a felony offense is, or was, a member of the United States

military who may be suffering from sexual trauma, traumatic brain injury,

post-traumatic stress disorder, substance abuse, or mental health problems

as a result of the defendant’s military service, the court shall consider the

circumstance as a factor in mitigation when imposing a sentence. This

consideration does not preclude the court from considering similar trauma,

injury, substance abuse, or mental health problems due to other causes, as

evidence or factors in mitigation.”

6 Subdivision (b) states in relevant part:“(1) 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-traumatic stress disorder,

substance abuse, or mental health problems as a result of the person’s

military service may petition for a recall of sentence, before the trial court

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subdivision (c), excludes from eligibility for sentencing relief (subdivision (a))

or resentencing relief (subdivision (b)) persons who have committed specified

offenses.

Section 1170.91, subdivision (c), states: “This section”—referring to

section 1170.91 as a whole—“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 or an

offense requiring registration pursuant to subdivision (c) of Section 290.”

(Italics added.)

C.

The applicable principles governing our interpretation of section

1170.91 are familiar and well-settled. “ ‘ “When interpreting statutes, we

begin with the plain, commonsense meaning of the language used by the

Legislature. [Citation.] If the language is unambiguous, the plain meaning

controls. [Citation.]” [Citation.] If the language of the statute is ambiguous,

a court “can look to legislative history [citation] and to rules or maxims of

construction” to resolve the ambiguity.’ [Citation.] ‘ “ ‘As in any case

involving statutory interpretation, our fundamental task is to determine the

Legislature’s intent so as to effectuate the law’s purpose.’ ” ’ [Citation.]

“ ‘ “We do not . . . consider the statutory language in isolation; rather,

we look to the entire substance of the statutes in order to determine their

scope and purposes. [Citation.] That is, we construe the words in question in

context, keeping in mind the statutes’ nature and obvious purposes.

that entered the judgment of conviction in the case, to request resentencing if

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.”

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[Citation.] We must harmonize the various parts of the enactments by

considering them in the context of the statutory framework as a whole.” ’

[Citation.] A statute’s legislative history and the circumstances of its

enactment may be considered in ascertaining legislative intent.” (Sutter’s

Place, Inc. v. California Gambling Control Com. (2024) 101 Cal.App.5th 818,

832–833.)

1.

Turning to the application of these principles here, we begin with the

statutory text. Harrison suffered a serious and violent felony conviction in

1995, for which he was sentenced to 15 years to life in state prison. This

offense is listed in section 667, subdivision (e)(2)(C)(iv), as a “serious or

violent felony offense punishable in California by life imprisonment or death.”

(§ 667, subd. (e)(2)(C)(iv)(VIII).) The Attorney General argues that, as a

result, Harrison falls within the disqualifying clause, section 1170.91,

subdivision (c), and is ineligible for resentencing relief as a matter of law

under the plain language of the statute. We agree.

Resisting this conclusion, Harrison claims that section 1170.91,

subdivision (c), “discusses two situations: (1) a person convicted of a listed

super-strike, and (2) a person having one or more convictions for a listed

super-strike.” “If (1) and (2) are describing the same type of situation,”

Harrison claims, “the way the [Attorney General] reads it, (2) becomes

superfluous.” He asserts that the statutory wording disqualifies from

resentencing eligibility only a defendant with a prior super strike conviction

at the time he suffers the conviction for which resentencing is sought.

According to Harrison, the legislative history shows that the addition of

the phrase “convicted of” was added to clarify that the exclusionary clause

applies both to sentencing for new convictions and to resentencing on prior

convictions. That may be so—structurally, Harrison is correct, since

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subdivision (c) does indeed apply to section 1170.91 as a whole—but we fail to

see how attributing this drafting change to clarification advances his cause.

“[W]e generally must ‘accord[] significance, if possible, to every word, phrase

and sentence in pursuance of the legislative purpose,’ and . . . ‘[a]

construction making some words surplusage is to be avoided.’ ” (People v.

Valencia (2017) 3 Cal.5th 347, 357 (Valencia).) And upon a straightforward

reading that gives meaning to both of the key phrases in section 1170.91,

subdivision (c)—“convicted of” and “having one or more prior convictions”—

the plain import of the words is that if a defendant was “convicted of” a listed

super strike, whether as a first-time offense or as a prior offense, he is

disqualified.

2.

There is, to be sure, a textual hook that might support the argument

Harrison makes here, but it is not in section 1170.91. It is in section 667,

subdivision (e)(2)(C)(iv), the cross-referenced list of disqualifying offenses in

section 1170.91, subdivision (c). Under the precept that context matters in

statutory interpretation, we must scrutinize section 667, subdivision

(e)(2)(C)(iv) closely, since by this cross-reference, the Legislature indicated it

intends these two statutes to be read together.

Section 667, subdivision (e)(2)(C)(iv) begins as follows: “The defendant

suffered a prior serious or violent felony conviction . . . for any of the following

felonies.” (Italics added.) There follows, in section 667, subdivision

(e)(2)(C)(iv)(I) through (VIII) a list of offenses colloquially known as super

strikes. (Valencia, supra, 3 Cal.5th at p. 351.) The word “prior” signals that

the listed super strike convictions must have been suffered at some point in

time before the current offense of conviction. For confirmation of that, we

need look no further than the structure of section 667, subdivision (e)(2)(C),

which distinguishes between disqualifying “current offense[s]” (§ 667, subd.

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(e)(2)(C)(i)–(iii)) and disqualifying “prior . . . conviction[s]” (id.,

subd. (e)(2)(C)(iv)).

The broader context is also relevant. The concept of super strikes as

codified in section 667, subdivision (e)(2)(C)(iv)(I) through (VIII) was first

introduced into California law as an exception to the revised sentencing rules

added by Proposition 36 (also known as the Three Strikes Reform Act of

2012), the November 6, 2012 ballot initiative statute (Proposition 36 or the

Reform Act) limiting life term sentences under the Three Strikes law to

serious or violent third strike offenses. (People v. Johnson (2015) 61 Cal.4th

674, 681–682, 693.) Designed to serve as a carveout to the Reform Act, super

strikes are a subset of “particularly serious or violent felonies.” (Valencia,

supra, 3 Cal.5th at p. 351 & fn.3; see § 667, subd. (e)(2)(C)(iv)(I)–(VIII).) 7

7 Under the Three Strikes law as originally enacted in 1994, “[w]hen a

defendant is convicted of a felony, and it is pleaded and proved that he has

committed one or more prior felonies defined as ‘violent’ or ‘serious,’

sentencing proceeds under the Three Strikes law ‘[n]otwithstanding any

other law.’ ” (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 505

[citing former §§ 667, subd. (c), 1170.12, subd. (a)].)

The Three Strikes law was revised with the enactment of Proposition

36 in 2012. “Prior to the enactment of Proposition 36, a defendant who had

two or more prior serious or violent felony convictions was subject to a

sentence of 25 years to life upon any new felony conviction. (Former §§ 667,

subds. (b)–(i), 1170.12.) Proposition 36 amended sections 667 and 1170.12 to

require courts to impose life sentences only where the new offense is not just

any felony offense, but a serious or violent offense, unless the prosecution

pleads and proves certain disqualifying factors. In all other cases, the

defendant will be sentenced as a second strike offender.” (People v. Spiller

(2016) 2 Cal.App.5th 1014, 1019–1020.)

The Proposition 36 disqualifying factors include commission of certain

felony sex offenses, crimes involving the use of a firearm or deadly weapon

during the commission of a crime or the intent to cause great bodily injury to

another person, and crimes involving the possession of substantial quantities

of a controlled substance. (§§ 1170.126, subd. (e)(2), 667, subd. (e)(2)(C)(i)–

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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.

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. 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. (Valencia, supra, 3 Cal.5th at p. 357.) This we decline to do.

A similar issue arose under Proposition 47 (as approved by voters, Gen.

Elec. (Nov. 4, 2014)) (Proposition 47) and the case law construing it. A

disqualifying clause in the Proposition 47 resentencing scheme, like section

1170.91, subdivision (c), borrows disqualifying language from Proposition 36,

except that the operative wording in the Proposition 47 scheme lacks any

reference to persons “convicted of” a super strike. Section 1170.18 sets forth

(iii), 1170.12, subd. (c)(2)(C)(i)–(iii).) Also disqualifying—and particularly

notable here because section 1170.91, subdivision (c), borrows from this

feature of Proposition 36—is any prior super strike conviction. (§§ 1170.126,

subd. (e)(3), 667, subd. (e)(2)(C)(iv), 1170.12, subd. (c)(2)(C)(iv).)

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the Proposition 47 resentencing procedure under which certain felonies may

be redesignated as misdemeanors. The disqualifier there, tracking

Proposition 36, reads as follows: “This section does not apply to a person who

has one or more prior convictions for an offense specified in clause (iv) of

subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or for an

offense requiring registration pursuant to subdivision (c) of Section 290.”

(§ 1170.18, subd. (i).)

Courts have been called upon to construe what the word “prior” means

in section 1170.18, subdivision (i). Unanimously, these courts have answered

that, under section 1170.18, subdivision (i), “prior” means a conviction

suffered at any time before a Proposition 47 resentencing proceeding. 8

Because of the disjunctive phrase “convicted of, or having one or more prior

convictions” (§ 1170.91, subd. (c)), the question we have here is somewhat

different. But the additional disjunctive language, if anything, indicates

that—cognizant of how Proposition 47 has been interpreted—the Legislature

chose to provide even more clearly in section 1170.91 that first-time super

strikers as well as those with past super strike convictions are disqualified.

Harrison argues that if we were to adopt the Attorney General’s plain

language reading of section 1170.91, subdivision (c), we would be excluding

from the ambit of the statute “all life sentences, including indeterminate life

sentences for relief under the statute, such as the one Appellant is serving.”

The point is not without force, at least superficially, since one of the primary

purposes of the Legislature’s 2022 amendments to section 1170.91 was to

extend its ameliorative benefits to indeterminately sentenced defendants. It

8 See People v. Walker (2016) 5 Cal.App.5th 872, 876–877; People v.

Casillas (2017) 13 Cal.App.5th 745, 751–752; People v. Montgomery (2016)

247 Cal.App.4th 1385, 1389–1391; People v. Zamarripa (2016) 247

Cal.App.4th 1179, 1183–1184.

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is true that the list of disqualifying offenses cross-referenced in section

1170.91, subdivision (c), ends with a catch-all category that is stated in

sweeping terms: “Any serious or violent felony offense punishable in

California by life imprisonment or death.” (§ 667, subd. (e)(2)(C)(iv)(VIII).)

And read literally, it is hard to imagine that any indeterminately sentenced

defendant would not be covered by this clause. But does that mean the

Legislature inadvertently added a disqualifier that effectively defeats its

objective of giving indeterminately sentenced defendants the benefit of

resentencing consideration under section 1170.91?

We think not. In People v. Hernandez (2017) 10 Cal.App.5th 192, a

Sixth District panel held that section 667, subdivision (e)(2)(C)(iv)(VIII)

refers to “an offense that itself has an associated statutory punishment of life

imprisonment or death, not an offense such as robbery, which has an

associated statutory punishment of two, three, or five years.” (Id. at p. 202.)

Under Hernandez—which we believe is soundly reasoned—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. Thus, Harrison

overstates the breadth of the People’s position in this appeal. While the

Attorney General’s reading of section 1170.91, subdivision (c), disqualifies

those who committed particularly egregious strike offenses at any time (using

super strikes as a proxy for egregiousness), it does not disqualify all

indeterminately sentenced life prisoners.

Notably, Harrison fails to offer a competing interpretation of section

1170.91, subdivision (c), to which the statutory text is reasonably susceptible.

His argument is that, by cross-referencing section 667, subdivision

(e)(2)(C)(iv), the drafters of the 2022 amendments to section 1170.91 showed

an intent to exclude from resentencing eligibility only those defendants who

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received a life term under the Three Strikes sentencing scheme as amended

by the Reform Act. In essence, he argues that, since he was a first-time

offender when sentenced to prison in 1995, his indeterminate life term

conviction for violating section 273ab cannot be a super strike within the

meaning of section 667, subdivision (e)(2)(C)(iv) because he was convicted

long before the enactment of the Reform Act.

The logic of this argument would mean section 1170.91, subdivision (c)

only excludes those Three Strikes defendants sentenced from 2012 forward,

given that the super strike provisions were not added to section 667 until the

Reform Act’s passage in 2012. That is an odd dividing line for the Legislature

to have drawn, and unsurprisingly, it is nowhere evident in the statutory

language. The pertinent text of section 1170.91, subdivision (c), as we have

noted, simply directs the reader to those “person[s] convicted of, or having

one or more prior convictions for, an offense specified in [section 667,

subdivision (e)(2)(C)(iv)].” The focus is on the offense, not the law under

which an indeterminate life sentence is or was imposed.

3.

Rather than grapple with the statutory text in a manner that convinces

us there is some genuine ambiguity in it, Harrison invites us to adopt an

interpretation based on the legislative history of Senate Bill No. 1209 (2021–

2022 Reg. Sess.) (Senate Bill 1209), the bill that, as enacted and signed by the

Governor, revised section 1170.91 in 2022. The legislative history of Senate

Bill 1209 is full of references to the Legislature’s desire to disqualify section

1170.91 petitioners based on a demonstrated history of recidivism. 9 And

9 See Senate Committee on Appropriations, Analysis of Senate Bill

1209, as amended April 25, 2022, pages 1, 3; Assembly Committee on Public

Safety, Analysis of Senate Bill 1209, as amended May 19, 2022, pages 1, 6;

17

based on several of these references, Harrison suggests the Legislature

sought to ensure that only those defendants with serious or violent prior

convictions would be ineligible to receive the ameliorative benefits of section

1170.91. No matter how serious an indeterminate prisoner’s life term crime

may be, he posits that the Legislature intended first-time offenders like him

to be eligible for resentencing consideration.

For this proposed interpretation of section 1170.91, subdivision (c),

Harrison cites a June 2022 Assembly Public Safety Committee report

analyzing Senate Bill 1209. The cited passage upon which he relies states

that, under the proposed amendment to section 1170.91 in Senate Bill 1209,

a first-time offender sentenced to an indeterminate life term for first degree

murder would be eligible for section 1170.91 resentencing relief. (Assem.

Com. on Public Safety, Analysis of Sen. Bill 1209, supra, as amended May 19,

2022, p. 6.) Whatever may have been the understanding of the person who

drafted the June 2022 Assembly Public Safety Committee report, the first

degree murder example it gives does not comport with the language of Senate

Bill 1209 as enacted. A first-time offender who suffers a conviction for first

degree murder, just like Harrison, is someone who has been “convicted of” a

listed super strike described by section 667, subdivision (e)(2)(C)(iv) and, in

our view, would be disqualified from section 1170.91 relief for the same

reason Harrison is.

Even if there were a need to consult legislative history, we are not

inclined to accept an isolated reference in a legislative committee report as

controlling where it is contrary to enacted language. (See Friends of Lagoon

Valley v. City of Vacaville (2007) 154 Cal.App.4th 807, 826 [“ ‘ “[I]t is the

Senate Third Reading Analysis of Senate Bill 1209, as amended May 19,

2022, page 1.

18

language of the statute itself that has successfully braved the legislative

gauntlet. It is that language which has been lobbied for, lobbied against,

studied, proposed, drafted, restudied, redrafted, voted on in committee,

amended, reamended, analyzed, reanalyzed, voted on by two houses of the

Legislature, sent to a conference committee, and, after perhaps more

lobbying, debate and analysis, finally signed ‘into law’ by the Governor. The

same care and scrutiny does not befall the committee reports, caucus

analyses, authors’ statements, legislative counsel digests and other

documents which make up a statute’s ‘legislative history.’ ” ’ ”].)

Aside from this one reference to the example of a first-time offender

who suffers a conviction for first degree murder, we see nothing in the

legislative history of Senate Bill 1209 that is inconsistent with the reading of

section 1170.91, subdivision (c), which we adopt. 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.

III.

The order appealed from is affirmed.

STREETER, J.

WE CONCUR:

BROWN, P. J.

GOLDMAN, J.

19

20

Trial Court: Superior Court of California, County of Solano

Trial Judge: Hon. John B. Ellis

Counsel: David A. Kaiser, under appointment by the Court of Appeal,

for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief

Assistant Attorney General, Jeffrey M. Laurence,

Assistant Attorney General, Bridget Billeter and

Claudia H. Phillips, Deputy Attorneys General, for

Plaintiff and Respondent.

People v. Harrison – A170760