People v. Gniech CA3 ( 2022 )

Filed 10/24/22 P. v. Gniech CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Tehama)
----
THE PEOPLE, C095022
Plaintiff and Respondent, (Super. Ct. No. 21CR000018)
v.
THOMAS BRETT ANTHONY GNIECH,
Defendant and Appellant.
In July 2021, defendant Thomas Brett Anthony Gniech pleaded guilty to assault
with a deadly weapon. (Pen. Code, § 245, subd. (a)(1).)1 Following his plea, the trial
court sentenced defendant to the middle term of three years in state prison. On appeal,
defendant argues he is entitled to resentencing based on the amendments to section 1170,
1 Undesignated statutory references are to the Penal Code.
1
subdivision (b). The Attorney General concedes the issue. We conclude the matter must
be remanded for resentencing.
BACKGROUND
On January 5, 2021, while at his grandmother’s home, defendant became agitated
and threw a wooden plank at a woman who was helping his grandmother clean her home.
The plank missed and defendant shoved the victim repeatedly; the victim was not injured.
Defendant was arrested and charged with assault with a deadly weapon. (§ 245, subd.
(a)(1).) It was further alleged that defendant had a prior conviction for a serious or
violent felony.
After denying defendant’s Marsden2 motion, the trial court suspended criminal
proceedings and appointed an expert to evaluate defendant’s ability to stand trial.
Defendant was found incompetent. As a result, in April 2021, the trial court committed
defendant to the State Department of State Hospitals and ordered antipsychotic
medication be administered. (§ 1370, subd. (a)(2)(B)(i).)
On July 19, 2021, the trial court determined that defendant’s competence was
restored and reinstated the criminal proceedings against him. That same day, defendant
pleaded guilty to the sole charge of assault with a deadly weapon. In exchange for his
plea, the prosecutor moved the court to dismiss both the remaining allegation and an
unrelated pending matter (Tehama County case No. 20CR-2645) with a Harvey3 waiver.
The court granted the prosecutor’s motion.
Following his plea, defendant asked the court to consider him for probation.
Defendant wanted to obtain treatment through the behavioral health court. The court
took the request under consideration, but the Tehama County Health Services Agency
2 People v. Marsden (1970) 2 Cal.3d 118.
3 People v. Harvey (1979) 25 Cal.3d 754.
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found him ineligible for treatment because defendant “previously participated in a
treatment court program, violated and was sentenced to state prison.” The probation
department echoed this finding, but noted defendant has “serious mental health issues
that greatly impact his life.”
As noted in the psychological evaluation completed by court-appointed
psychologist Kent R. Caruso, Ph.D., defendant was previously diagnosed with
schizophrenia. Dr. Caruso observed, “All indications are that [defendant] has been
pervasively dysfunctional since at least his late, if not his mid-teens.” Defendant told
Dr. Caruso he began smoking marijuana “on a persistent basis at age 15, and
methamphetamine, at the same rate, at age 19.”
Defendant was unable to provide Dr. Caruso with much “insight” into his
childhood experiences. Defendant indicated his father left when he was young and told
Dr. Caruso he was “adopted by a woman who lived across the street from his biological
mother when he was 17.” Defendant also said he has three siblings but has no idea where
they live or what they are doing.
On September 13, 2021, the court refused defendant’s request for probation and
sentenced him to the middle term of three years in state prison.
DISCUSSION
On appeal, defendant argues he is entitled to resentencing based on the
amendments to section 1170, subdivision (b), by Senate Bill No. 567 (2021-2022 Reg.
Sess.).4 The Attorney General agrees, as do we. The matter shall be remanded for
resentencing.
4 Senate Bill No. 567 was enacted after Assembly Bill No. 124 (2021-2022 Reg. Sess.)
and incorporated Assembly Bill No. 124’s amendments to section 1170. (Stats. 2021,
ch. 731, § 3(c).) Thus, Senate Bill No. 567 is the operative legislation and not Assembly
Bill No. 124.
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At the time of defendant’s sentencing, section 1170, former subdivision (b)
provided that “[w]hen a judgment of imprisonment is to be imposed and the statute
specifies three possible terms, the choice of the appropriate term shall rest within the
sound discretion of the court.” (Stats. 2020, ch. 29, § 14.) Senate Bill No. 567 amended
this provision effective January 1, 2022, and divided it into parts. Section 1170,
subdivision (b)(6) now provides in relevant part that “unless the court finds that the
aggravating circumstances outweigh the mitigating circumstances that imposition of the
lower term would be contrary to the interests of justice, the court shall order imposition
of the lower term,” if, the trial court finds an offender’s psychological, physical, or
childhood trauma was a contributing factor in the offense.
We agree with the parties that amended section 1170, effective January 1, 2022,
applies retroactively as an ameliorative change in the law that is applicable to all nonfinal
convictions. (People v. Flores (2022) 73 Cal.App.5th 1032, 1039.) Defendant contends
“he has had the misfortune of suffering from all three enumerated traumas . . . .” In
addition to his drug use and diagnosed mental illness, defendant references his biological
parents’ mental illness and being put in the foster care system when he was eight years
old.
At the time of sentencing, defendant was not entitled to a presumptive lower term
upon a showing that he suffered a qualifying psychological, physical, or childhood
trauma, and that trauma contributed to the commission of his crime. (§ 1170, subd.
(b)(6).) Defendant thus had less incentive to develop a record regarding these issues. By
the same token, the trial court had less incentive to assess whether psychological,
physical, or childhood trauma was a contributing factor. (See People v. Banner (2022)
77 Cal.App.5th 226, 242, citing People v. Frahs (2020) 9 Cal.5th 618, 637-638.) As a
result, the record before us does not make it clear the trial court would have imposed the
middle term had section 1170, subdivision (b)(6) been in effect at the time. (Banner, at
p. 242.) Therefore, we conclude remand is necessary.
4
We express no opinion as to whether defendant suffered qualifying trauma, or
whether it in fact contributed to the commission of the crime, or whether imposing the
lower term would be contrary to the interests of justice. “Those are questions best left to
the trial court to answer in the first instance.” (People v. Banner, supra, 77 Cal.App.5th
at p. 242.)
DISPOSITION
Defendant’s conviction is affirmed. The sentence imposed is vacated and the
matter is remanded for resentencing.
/s/
HOCH, J.
We concur:
/s/
MAURO, Acting P. J.
/s/
BOULWARE EURIE, J.
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