# People v. Harrison

> California Court of Appeal · December 11, 2025

URL: https://www.frixlaw.com/law-library/cases/11219980

## Case

- **Court:** California Court of Appeal
- **Decided:** December 11, 2025
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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.

1
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

2
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.)

3
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

4
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).)

5
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.”

6
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

7
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

8
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

9
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.”

10
[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

11
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.

12
(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)–

13
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).)

14
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.

15
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

16
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11219980. Public record. Not legal advice.