DISCUSSION

Section 1170.91 provides that a person serving a sentence for a felony conviction who was in the military and suffers from mental health problems “as a result of his or her military service may petition for a recall of sentence.” (§ 1170.91, subd. (b)(1).) If, after a hearing, the court finds the defendant qualifies, “the court may, in its discretion, resentence the person following a resentencing hearing.” (§ 1170.91, subd. (b)(3), italics added.) Thus, unlike the recent resentencing procedures mandating relief if the petitioner satisfies the relevant criteria, relief under section 1170.91 is discretionary. (Ibid.) “‘Where, as here, a discretionary power is statutorily vested in the trial court, its exercise of that discretion “must not be

3 disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.”’” (People v. Williams (2013) 58 Cal.4th 197, 270-271.) Even if appellant was eligible for resentencing, as he claims, the trial court did not abuse its discretion by declining to mitigate his sentence. The jury convicted appellant of ten counts of lewd or lascivious conduct upon his eight-year-old daughter (§ 288, subd. (a)). On direct appeal, appellant argued his sentence was disproportionate to the relative severity of the crimes and his personal history. Among other things, he “point[ed] out that his criminal history is minor, that he has served his country in the military, and that he himself was molested by family members as a child.” (People v. Brock (Jan. 19, 2005, B169224 & B173044) [nonpub. opn.], italics added.)3 Appellant also “relie[d] heavily on two psychological evaluations that concluded he was not a pedophile and had a good prognosis for treatment.” (Ibid.) Familiar with the evidence at trial, the trial court concluded appellant did not deserve the requested relief. In so ruling, the court considered all of the mitigating factors, including those related to defendant’s mental health conditions. Appellant’s supplemental brief fails to provide any basis upon which we could conclude that the trial court abused its discretion in denying the petition. Since nothing in appellant’s supplemental brief raises an arguable issue on appeal from the order denying the petition for

3On our own motion, we take judicial notice of our prior opinion affirming the judgment. (Evid. Code, § 452, subd. (d).)

4 resentencing, we dismiss the appeal. (People v. Serrano, supra, 211 Cal.App.4th at pp. 503-504.)

DISPOSITION

The appeal is dismissed.

PERREN, J.

We concur:

GILBERT, P.J.

YEGAN, J.

5 Judith L. Meyer, Judge Superior Court County of Los Angeles ______________________________

Anna Rea, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.

6