People v. Gumienny CA4/1 ( 2022 )


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  • Filed 7/26/22 P. v. Gumienny CA4/1
    NOT TO BE PUBLISHED IN OFFICIAL REPORTS
    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 This opinion has not been certified for publication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.
    COURT OF APPEAL, FOURTH APPELLATE DISTRICT
    DIVISION ONE
    STATE OF CALIFORNIA
    THE PEOPLE,                                                          D079359
    Plaintiff and Respondent,
    v.                                                          (Super. Ct. No. SCE289767)
    GARTH JASON GUMIENNY,
    Defendant and Appellant.
    APPEAL from a judgment of the Superior Court of San Diego County,
    Peter C. Deddeh, Judge. Affirmed.
    Randall Conner, under appointment by the Court of Appeal, for
    Defendant and Appellant.
    Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
    Attorney General, Charles C. Ragland, Assistant Attorney General,
    Adrian R. Contreras and Melissa Mandel, Deputy Attorneys General, for
    Plaintiff and Respondent.
    After Garth Jason Gumienny entered a stipulated plea agreement and
    began serving his sentence, Assembly Bill No. 865 (Assembly Bill 865) (2017-
    2018 Reg. Sess.) amended Penal Code1 section 1170.91 to offer resentencing
    relief for those who had military-related mental health and substance abuse
    problems. Gumienny contends he is entitled to this relief and challenges the
    court’s denial of his request. He argues that nothing in the statute prevents
    the court from resentencing him, even though his plea agreement included a
    stipulated sentence. We conclude that Gumienny is ineligible for
    resentencing relief under section 1170.91, subdivision (b). We affirm the
    judgment.
    I
    FACTUAL AND PROCEDURAL BACKGROUND
    In 2009, the People charged Gumienny with one count of oral
    copulation or sexual penetration with a child 10 years old or younger (§ 288.7,
    subd. (b)) and 10 counts of lewd or lascivious acts upon a child under age 14
    (§ 288, subd. (a).)2 He pled guilty to one count of sexual penetration with a
    child under 10 years of age (§ 288.7, subd. (b); count 1) and one count of a
    lewd act upon a child under age 14 (§ 288, subd. (a); count 2), and the People
    dismissed the remaining counts. As part of the plea agreement, the parties
    agreed to a stipulated prison sentence of 21 years to life.
    The court sentenced Gumienny to an indeterminate term of 21 years to
    life on count 1 and a determinative, concurrent term of six years on count 2.
    In 2017, a correctional case records analyst notified the court that there was
    an error in sentencing on count 1 and asked the court to clarify the sentence.
    The court modified the abstract of judgment to reflect an indeterminate term
    1     Further section references are to the Penal Code.
    2     The underlying facts of the conviction are not relevant to this appeal.
    2
    of 15 years to life on count 1 and a determinative, consecutive term of six
    years on count 2.
    In 2021, Gumienny filed a petition for resentencing on count 2 of his
    plea under section 1170.91, subdivision (b) for military-related post-
    traumatic stress disorder (PTSD.) Gumienny claimed that he served in the
    military, he suffered from PTSD as a result of his service, the court did not
    consider his military-related PTSD during sentencing, and the court
    sentenced him before January 1, 2015. In addition, he argued that the record
    was ambiguous as to whether the six-year consecutive term for count 2 was a
    stipulated term, and thus the court should not deny the petition.
    At the hearing, the court explained that sentencing Gumienny to 21
    years to life on count 1 “was a mistake that [it] made when [it] articulated his
    sentence,” and thus the sentence was “an unlawful sentence because you
    can’t sentence somebody to 21 years to life . . . on that particular charge.”
    The court further clarified that it did not change Gumienny’s sentence.
    Rather, it “impos[ed] the plea agreement with a lawful sentence.” Therefore,
    the court concluded that “[the correction] didn’t change [Gumienny’s]
    sentence because that’s what he bargained for.” The court denied
    Gumienny’s petition for resentencing.
    Gumienny filed a timely notice of appeal.
    II
    DISCUSSION
    Gumienny contends the court erred by denying his request for
    resentencing because he meets the requirements of section 1170.91,
    subdivision (b), and his plea agreement does not prevent application of that
    statute.
    3
    We examine a statutory interpretation issue de novo. (People v. Prunty
    (2015) 
    62 Cal.4th 59
    , 71.) When a case requires statutory interpretation, “our
    fundamental task here is to determine the Legislature’s intent so as to
    effectuate the law’s purpose.” (People v. Murphy (2001) 
    25 Cal.4th 136
    , 142.)
    First, we examine the statutory language’s plain meaning. (Ibid.) “If the
    statutory language is unambiguous, then its plain meaning controls.”
    (People v. Cole (2006) 
    38 Cal.4th 964
    , 975.) Additionally, “[c]ourts should give
    meaning to every word of a statute if possible, and should avoid a
    construction making any word surplusage.” (Arnett v. Dal Cielo (1996) 
    14 Cal.4th 4
    , 22.) However, “if [the statutory language] is ambiguous, we may
    then turn to other tools to divine the Legislature’s intent.” (Lexin v. Superior
    Court (2010) 
    47 Cal.4th 1050
    , 1079.) To discern the Legislature’s intent, “we
    may look to extrinsic aids, including legislative history or purpose to inform
    our views.” (John v. Superior Court (2016) 
    63 Cal.4th 91
    , 96.)
    A. Assembly Bill 865
    Assembly Bill 865 amended section 1170.91 and expanded resentencing
    relief for convicted felons so that military-related mental health and
    substance abuse problems could be considered as a mitigating factor in
    sentencing. Under subdivision (a), “[i]f the court concludes that a defendant
    convicted of a felony offense is, or was, a member of the United States
    military who may be suffering from sexual trauma, traumatic brain injury,
    post-traumatic stress disorder, substance abuse, or mental health problems
    as a result of his or her military service, the court shall consider the
    circumstance as a factor in mitigation when imposing a term under
    subdivision (b) of Section 1170.” (§ 1170.91, subd. (a).) “A person currently
    serving a sentence for a felony conviction, whether by trial or plea, who is, or
    was, a member of the United States military . . . may petition for a recall of
    4
    sentence, before the trial court that entered the judgment of conviction in his
    or her case” if he or she meets two requirements. (§ 1170.91, subd (b)(1).)
    First, “[t]he circumstance of suffering from sexual trauma, traumatic brain
    injury, post-traumatic stress disorder, substance abuse, or mental health
    problems as a result of the person’s military service was not considered as a
    factor in mitigation at the time of sentencing.” (§ 1170.91, subd. (b)(1)(A).)
    Second, “[t]he person was sentenced prior to January 1, 2015.” (§ 1170.91,
    subd. (b)(1)(B).) After receiving a section 1170.91 petition, “the court shall
    determine, at a public hearing . . . whether the person satisfies the criteria in
    this subdivision.” (§ 1170.91, subd. (b)(3).) “If the person satisfies the
    criteria, the court may, in its discretion, resentence the person following a
    resentencing hearing.” (§ 1170.91, subd. (b)(3).)
    Several appellate courts have recently considered the implications of
    Assembly Bill 865. In People v. King (2020) 
    52 Cal.App.5th 783
    , 786-787
    (King), a panel of this court contemplated the plain meaning of the statute in
    evaluating whether a trial court’s summary denial of a petition for
    resentencing under section 1107.91, subdivision (b) resulted in a prejudicial
    error when the defendant agreed to a stipulated sentence. There, the
    defendant pled guilty to five counts of forcible lewd acts upon a child, and the
    People dismissed the remaining counts. (King, at p. 787.) The parties agreed
    to a stipulated sentence of 30 years in prison. (Ibid.) The defendant filed a
    petition for resentencing pursuant to section 1170.91, subdivision (b), and the
    trial court denied the petition without holding a hearing. (King, at p. 787.)
    We held: “Based on the rule that the trial court is not permitted to
    diverge from the stipulated sentence agreed upon by the parties and
    approved, as a final matter, by the court [citation], the trial court considering
    a petition for resentencing under section 1170.91, subdivision (b)(1), is simply
    5
    unable to take into account any factors in mitigation to diverge from the
    stipulated sentence for a specific prison term agreed upon in a plea
    agreement.” (King, supra, 52 Cal.App.5th at p. 793.) “[I]t is clear from the
    statutory language itself that the Legislature cannot have intended the
    resentencing relief that it enacted in section 1170.91, subdivision (b)(1) to
    apply to petitioners who, like [the defendant], were sentenced according to a
    stipulated sentence.” (Ibid.) Consequently, because the defendant in King
    agreed to a plea with a stipulated prison term, the trial court “would be
    precluded from considering [the defendant’s] mental health and substance
    abuse problems in mitigation and imposing a lesser prison sentence.” (Id. at
    p. 791.)
    Two other courts of appeal have followed the reasoning provided in
    King. In People v. Brooks (2020) 
    58 Cal.App.5th 1099
     (Brooks), the defendant
    pled no contest to three counts of second-degree robbery with additional
    firearm enhancements and agreed to a stipulated prison term. (Id. at
    p. 1102.) The People dismissed the remaining counts as a result. (Ibid.)
    Additionally, in People v. Pixley (2022) 
    75 Cal.App.5th 1002
     (Pixley), the
    defendant pled guilty to six counts of a forcible lewd act on a child under 14
    and agreed to a stipulated prison term. (Id. at p. 1004.) The People
    dismissed the remaining counts as a result. (Ibid.)
    The defendants in Brooks and Pixley each filed petitions for
    resentencing under section 1170.91, subdivision (b), and the trial courts in
    each case denied the petitions. (Brooks, supra, 58 Cal.App.5th at p. 1103;
    Pixley, supra, 75 Cal.App.5th at p. 1005.) Both appellate courts found that
    “the resentencing authority conferred by section 1170.91, subdivision (b) is
    inherently incompatible with the recognized finality of plea agreements to a
    specified term of years.” (Brooks, at p. 1109; see also Pixley, at p. 1008.)
    6
    B. Analysis
    We agree with the prior caselaw, and we will apply it here. Similar to
    King, Brooks, and Pixley, Gumienny pled guilty to two counts (§ 288.7,
    subd. (b); count 1; § 288, subd. (a); count 2), and he agreed to a stipulated
    prison term of 21 years to life. In exchange, the People dismissed the
    remaining counts. Gumienny’s arguments fail here, as they did in prior
    cases, because the Legislature intended to exclude defendants with stipulated
    plea agreements from obtaining section 1170.91 resentencing relief. As
    emphasized in King, because a trial court must adhere to a stipulated plea
    agreement, it cannot “take into account any factors in mitigation to diverge
    from the stipulated sentence,” when resentencing a petitioner under section
    1170.91. (King, supra, 52 Cal.App.5th at p. 793.) Thus, the statute does not
    support Gumienny’s contention that the trial court may still consider his
    potential military-related PTSD as a mitigating factor when he previously
    agreed to a stipulated sentence.
    Although the trial court initially imposed an unauthorized sentence,3
    this does not affect Gumienny’s ineligibility for resentencing under
    section 1170.91 in this case because it is a “well-settled rule of law that an
    illegal sentence may be corrected at any time” (People v. Reyes (1989) 
    212 Cal.App.3d 852
    , 857), and here the court corrected the sentence without
    altering the stipulated term of 21 years to life. Therefore, Gumienny remains
    ineligible for resentencing under section 1170.91, subdivision (b) for count 2
    of his plea agreement.
    3     A sentence is unauthorized when it “could not lawfully be imposed
    under any circumstance in this particular case.” (People v. Scott (1994)
    
    9 Cal.4th 331
    , 354.) Under section 288.7, subdivision (b), the authorized
    penalty for sexual penetration with a child under 10 years old is a term of 15
    years to life in state prison. (§ 288.7, subd. (b).)
    7
    Gumienny asks us to follow the reasoning of the Brooks dissent.
    Additionally, Gumienny contends that the rule in Doe v. Harris (2013)
    
    57 Cal.4th 64
     (Doe) applies here, and he requests we apply the high court’s
    statutory construction in Harris v. Superior Court (2016) 
    1 Cal.5th 984
    (Harris) to section 1170.91. However, those rules are inapplicable to this
    case.
    In a dissenting opinion in Brooks, Justice Polluck concluded that a trial
    court maintains some discretion in a stipulated sentence: “[A]lthough the
    trial court may not modify the plea agreement by unilaterally altering its
    terms, the court does retain the authority to withdraw its approval of the
    plea agreement.” (Brooks, supra, 58 Cal.App.5th at pp. 1111-1112 (dis. opn.
    of Polluck, J.).) Therefore, he reasoned that a request for resentencing under
    section 1170.91, subdivision (b) by a defendant who agreed to a stipulated
    sentence as part of a plea agreement would not be “an idle act.” (Brooks, at p.
    1111.) Gumienny implies that this view is supported by Doe. In Doe, the
    high court found that parties who enter into plea agreements are not
    insulated “from changes in the law that the Legislature has intended to apply
    to them.” (Doe, supra, 57 Cal.4th at p. 66.)
    We decline to apply these views in this case because, as we explained in
    King, the statutory language of section 1170.91 demonstrates that the
    Legislature did not intend for resentencing relief to apply to defendants who
    agreed to a stipulated sentence. (King, supra, 52 Cal.App.5th at p. 793.)
    Accordingly, because of the “long-standing law that a court cannot
    unilaterally modify an agreed-upon term,” it follows that the Legislature did
    not intend to contradict this practice by permitting a court to resentence
    petitioners who agreed to a stipulated term. (People v. Stamps (2020) 
    9 Cal.5th 685
    , 701; King, at p. 793.)
    8
    Further, Harris is distinguishable. There, the high court addressed
    resentencing under Proposition 47, which reduced certain nonviolent felonies
    to misdemeanors, in order to extend resentencing relief to defendants with
    plea agreements. (Harris, supra, 1 Cal.5th at p. 991.) The Supreme Court
    found that Proposition 47’s explicit reference to convictions by plea extended
    resentencing relief to “all eligible defendants,” including those with
    underlying plea agreements. (Ibid.) However, as Brooks and Pixley pointed
    out, Proposition 47 is unique because it requires the resentencing court to
    “reject stipulated plea agreements categorically under retroactively conferred
    resentencing authority, thus eliminating the legal basis for the conviction.”
    (Brooks, supra, 58 Cal.App.5th at p. 1107; Pixley, supra, 75 Cal.App.5th at
    pp. 1006-1007.) Here, relief under section 1170.91 “does not eliminate the
    legal basis for [the] conviction or grant the trial court unfettered discretion to
    reconsider an aspect of [the] sentence that would in turn affect [the] plea
    bargain.” (Brooks, at p. 1107.) Instead, under section 1170.91 the court may
    only “take certain mitigating factors into account, and only insofar as the
    court is otherwise permitted to exercise discretion in the selection of a low,
    middle, or high term from within the applicable sentencing triad.” (Brooks,
    at p. 1107; see also King, supra, 52 Cal.App.5th at p. 792 [finding appellant’s
    reliance on Harris flawed “because of fundamental differences in the type of
    relief provided to a petitioner under section 1170.91, subdivision (b)(1)”].)
    Gumienny is not entitled to resentencing relief because he agreed to a
    plea that included a stipulated sentence. Thus, the trial court did not err in
    denying his petition for resentencing.
    9
    DISPOSITION
    The judgment is affirmed.
    HUFFMAN, Acting P. J.
    WE CONCUR:
    O’ROURKE, J.
    IRION, J.
    10
    

Document Info

Docket Number: D079359

Filed Date: 7/26/2022

Precedential Status: Non-Precedential

Modified Date: 7/26/2022