In an extended concurring statement accompanying the Supreme Court’s denial of review today in People v. Valliant, Justice Goodwin Liu says the case exposes a gap in legislation — Penal Code section 1170.91 — that makes post-traumatic stress disorder and other circumstances resulting from military service mandatory mitigating factors in sentencing a criminal defendant.
By its terms, the statute now applies retroactively, but only to those defendants sentenced before 2015, when the legislation first took effect. When Valliant was sentenced in March 2015, military service mitigating factors weren’t considered because the Department of Veterans Affairs didn’t verify his PTSD and opioid abuse disorder until 2017. But because Valliant wasn’t sentenced before 2015, the Fourth District, Division Three, Court of Appeal concluded in a published opinion that he couldn’t invoke section 1170.91 to seek resentencing.
Justice Liu says that, “by requiring that the original sentencing occur prior to January 1, 2015, for an individual to be eligible for resentencing — irrespective of when it was determined that the trauma, mental health, or substance abuse conditions were a result of military service — section 1170.91, subdivision (b) fails to ensure equal treatment of all veterans.”
The appellate court “wonder[ed] if the Legislature foresaw this result” and “invite[d] the Legislature to revisit this issue and, if it believes it is appropriate to do so, to provide Valliant and any other veteran in a similar position, with statutory relief.” Justice Liu seconds the sentiment, noting both that “the scientific literature has recognized delayed onset PTSD, particularly among veterans, where symptoms can take time to fully manifest” and that the VA administrative process can substantially delay verification of the mitigating factors.
In 2015, Justice Liu revived a long-dormant practice of issuing separate statements upon the court’s denial of review, and he has done so on a number of occasions since then. (See recently here and here.)