People v. Harrell CA4/2

DISCUSSION

Defendant contends King was wrongly decided, and he is eligible for resentencing

under section 1170.91. He thus believes the order denying his petition should be reversed

and the matter remanded for resentencing.

Section 1170.91, enacted in 2014, allows a court imposing a determinate felony

sentence to consider the fact that the defendant “is, or was, a member of the United States

3 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 his or her

military service . . . as a factor in mitigation . . . .” (§ 1170.91, subd. (a); see former

§ 1170.91, Stats. 2014, ch. 163, § 2.)

In 2018, section 1170.91 was amended to permit retrospective relief from a final

judgment. Thus, it also provides, as relevant here: “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 his or her military service may petition for…