Trial court must consider service related PTSD in sentencing

People v. Moseley (Cal. Ct. App., Oct. 8, 2024, No. G062697) 2024 WL 4440601

Summary: Mosley was convicted of voluntary manslaughter as lesser included offense of murder. Mosley appealed. The Court of Appeal held that trial court was statutorily required to consider Mosley’s service-related Post Traumatic Stress Disorder (PTSD) in determining eligibility for probation and in sentencing.

Service related PTSD as a factor in mitigation

A trial court “shall consider” a criminal defendant’s service-related posttraumatic stress disorder (PTSD) as a factor in mitigation when deciding whether to grant probation and when deciding on the appropriate sentence. (Pen. Code, §§ 1170.9, subd. (b)(1), 1170.91, subd. (a).)1

Moseley testified he was a combat veteran with PTSD. The jury found Moseley guilty of the lesser included offense of voluntary manslaughter (heat of passion).

Prior to sentencing, the probation department submitted a report without citing the relevant service-related statutes (§§ 1170.9 and 1170.91). The prosecution and the defense filed sentencing briefs that did not cite the relevant statutes. At the sentencing hearing, Moseley’s counsel mentioned sections 1170.9 and 1170.91, but he inexplicably said they were not “directly applicable.” At sentencing, the trial court referred to Moseley’s PTSD as a factor in mitigation, but the court did not refer to that factor when denying probation.

The trial court did not expressly consider sections 1170.9 and 1170.91 at sentencing. Because of the failure to explicitly consider sections 1170.9 and 1170.91 at sentencing, the Court of Appeal remanded the matter for resentencing.

This opinion was certified for publication to emphasize that trial courts have mandatory statutory obligations when sentencing qualifying veteran defendants, or current members of the United States military. (See §§ 1170.9, 1170.91; see also Cal. Rules of Court, rule 8.1105(c)(6).)

Trial court did not mention 1170.9 or 1170.91 at any point during the sentencing hearing.

The trial court did not understand its statutory obligations to affirmatively consider Moseley’s service-related PTSD when imposing its choice of sentence and/or denying probation. Sections 1170.9 and 1170.91 were not cited by either party in their sentencing briefs. Neither were sections 1170.9 and 1170.91 cited by the probation department in its sentencing report submitted to the court. Indeed, Moseley’s counsel inexplicably argued: “I don’t think that those code sections are directly applicable.”

The trial court mentioned Moseley’s service-related PTSD as a factor in mitigation (a mental condition) when making its decision between the lower, middle, or upper term sentence. (See Cal. Rules of Court, rule 4.423(b)(2) [“The defendant was suffering from a mental or physical condition that significantly reduced culpability for the crime”].) But there was no explicit mention of section 1170.91. The court also did not explicitly mention section 1170.9 at any point during the sentencing and did not mention—nor did it apparently consider—Moseley’s service-related PTSD as a factor in favor of granting probation when the court ultimately made its decision to deny probation. (See § 1170.9, subd. (b)(1) [“if the defendant is otherwise eligible for probation, the court shall consider the circumstances described in subdivision (a) as a factor in favor of granting probation”].)

The record in this case “necessitates remand because it is, at the very least, ambiguous as to whether the trial court was aware of its statutory obligations under sections 1170.9 and 1170.91.” (Panozo, supra, 59 Cal.App.5th at p. 840, 274 Cal.Rptr.3d 59, italics added.)

As in Panozo, it is appropriate to remand the matter to the trial court so it can exercise its informed discretion under sections 1170.9 and 1170.91. (See Panozo, supra, 59 Cal.App.5th at 837–841, 274 Cal.Rptr.3d 59 [a remand is required when the record is ambiguous as to whether a court was aware of its mandatory “obligations under sections 1170.9 and 1170.91”]; see also § 1260 [an appellate court may “remand the caused to the trial court for such further proceedings as may be just under the circumstances”].)

Disposition

The sentence is reversed. The trial court is directed to resentence Moseley consistent with its statutory obligations. (See §§ 1170.9, 1170.91.) In all other respects, the judgment is affirmed.

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