The Supreme Court today observes Veterans Day. So, it’s an appropriate time to remember that Justice Goodwin Liu issued a 2021 separate statement exposing a gap in a veteran-specific sentencing statute and that the Legislature responded with corrective legislation.

When the court denied a petition review in People v. Valliant, Justice Liu didn’t disagree, but he did write a separate statement to echo the Fourth District, Division Three, Court of Appeal’s concern that the relevant statute was unintentionally narrow and its suggestion of a remedial bill. (People v. Valliant (2020) 55 Cal.App.5th 903 [275 Cal.Rptr.3d 221, 228–230]; see here.)

The statute — Penal Code section 1170.91 — makes post-traumatic stress disorder and other circumstances resulting from military service mandatory mitigating factors in sentencing a criminal defendant. At the time Valliant was decided, section 1170.91 was retroactive only to those defendants sentenced before 2015, when the legislation first took effect.

Justice Liu wrote 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.” (275 Cal.Rptr.3d at p. 229.) He observed 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.

The following year, the Legislature accepted the constructive judicial criticism. It enacted Senate Bill 1209, which, as described by the Legislative Counsel’s digest, now allows a qualifying veteran-defendant “to petition for recall of sentence and resentencing . . . without regard to whether the defendant was sentenced prior to January 1, 2015.” The bill’s author expressly noted Justice Liu’s concerns.


Dissenting votes from denials of petitions for review raising other section 1170.91 issues. (Here and here.)

Justice Liu separate statements influence legislative session