Filed 3/15/23 P. v. Rymalowicz CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F083785
Plaintiff and Respondent,
(Super. Ct. No. 09CM2650HTA)
v.
PAUL DAVID RYMALOWICZ, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from an order of the Superior Court of Kings County. Michael J.
Reinhart, Judge.
John L. Staley, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri, Eric L.
Christoffersen and Robert C. Nash, Deputy Attorneys General, for Plaintiff and
Respondent.
-ooOoo-
* Before Poochigian, Acting P. J., Snauffer, J. and DeSantos, J.
INTRODUCTION
Defendant Paul David Rymalowicz pled no contest to two counts of continuous
sexual abuse of a child and was sentenced to a stipulated prison term of 28 years pursuant
to a negotiated plea. Subsequently, defendant filed a petition for resentencing under
Penal Code section 1170.91,1 which permits individuals to petition for resentencing when
military-related trauma was not considered as a mitigating factor at the time of
sentencing. The trial court denied his petition because he entered a plea agreement with a
stipulated term of imprisonment. While defendant’s appeal was pending, Senate Bill
No. 1209 (2021–2022 Reg. Sess.) (Senate Bill 1209) amended section 1170.91, in
relevant part, by excluding persons who have been convicted of an offense requiring sex
offender registration from eligibility for resentencing. (§ 1170.91, subd. (c).) We
ordered the parties to submit supplemental briefing addressing the impact of Senate
Bill 1209 on defendant’s case. Defendant contends the new exclusion has no effect on
his case because it does not apply retroactively, and to do so would deny him equal
protection of the law. We affirm.
PROCEDURAL BACKGROUND2
In 2009, the Kings County District Attorney filed an information charging
defendant with two counts of continuous sexual abuse of a child (§ 288.5, subd. (a);
counts 1 & 8), one count of lewd and lascivious acts by force against a child under the
age of 14 (§ 288, subd. (b)(1); count 2), two counts of committing a lewd act on a child
under the age of 14 (§ 288, subd. (a); counts 3 & 9), one count of unlawful sexual
intercourse by a person over the age of 21 with a person under the age of 16 (§ 261.5,
subd. (d); count 4), two counts of oral copulation of a person under the age of 14 (former
1 All further statutory references are to the Penal Code.
2 Because defendant raises only a sentencing issue, the facts underlying the offenses
are not relevant and are omitted from this opinion.
2.
§ 288a, subd. (c)(1); counts 5 & 10), one count of sodomy of a child under 14 years old
and more than 10 years younger than defendant (former § 286, subd. (c)(1); count 6),
one count of sodomy by force or fear (former § 286, subd. (c)(2); count 7), and one count
of forcible oral copulation (former § 288a, subd. (c)(2); count 11).
In 2010, defendant pled no contest to two counts of continuous sexual abuse of a
child (§ 288.5, subd. (a); counts 1 & 8) in exchange for the dismissal of the remaining
counts and a stipulated prison term of 28 years. Defendant was required to register as a
sex offender.
In 2021, defendant filed a petition for resentencing under former section 1170.91,
which allowed resentencing of any “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 and 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” (former § 1170.91, subd. (b)(1)), so long as the defendant’s
service-related issues were not considered as a factor in mitigation at the time of
sentencing and the defendant was sentenced prior to January 1, 2015 (former § 1170.91,
subd. (b)(1)(A)–(B)). Defendant alleged he was a former military member and that as a
result of his military service, he suffered from substance abuse. He further alleged that at
the time of sentencing, the trial court did not consider his military service and he was
sentenced prior to January 1, 2015.
The trial court denied defendant’s petition because he had been sentenced pursuant
to a stipulated sentence. In reaching its decision, the court relied on People v. Brooks
(2020) 58 Cal.App.5th 1099 (Brooks), reasoning that a “stipulated sentenced once
accepted by the court at entry of plea, prevents the court’s later exercise of discretion to
resentence” defendant pursuant to section 1170.91.
On January 12, 2022, defendant filed a notice of appeal.
3.
DISCUSSION
Defendant contends the amendment to section 1170.91, excluding persons who
have a conviction requiring sex offender registration from petitioning for resentencing
under the statute, does not apply retroactively, and that excluding him from resentencing
eligibility would deny him equal protection of the law.
A. History of Section 1170.91
On January 1, 2015, the Legislature enacted the original version of
section 1170.91. At the time, section 1170.91 required “a sentencing court [to] consider
mental health and substance abuse problems stemming from military service as a
mitigating factor when imposing a determinate term under section 1170, subdivision (b).”
(People v. King (2020) 52 Cal.App.5th 783, 788 (King).) Persons who were already
incarcerated were not afforded any relief under the original version of the statute.
“In 2018, the Legislature amended section 1170.91, designating the original
language as subdivision (a), and adding subdivision (b), which created a remedy for
qualifying defendants who were sentenced before section 1170.91 went into effect.”
(People v. Valliant (2020) 55 Cal.App.5th 903, 907.) In order to qualify for resentencing,
the person must have been sentenced prior to January 1, 2015, and to a determinate term
under section 1170, subdivision (b). (Former § 1170.91, subd. (b)(1)(A)–(B).) A
defendant who was sentenced pursuant to a stipulated term was ineligible for relief.
(King, supra, 52 Cal.App.5th at pp. 790–791; accord, Brooks, supra, 58 Cal.App.5th at
p. 1106; accord, People v. Pixley (2022) 75 Cal.App.5th 1002, 1008.)
B. Senate Bill 1209
Effective January 1, 2023, Senate Bill 1209 amended section 1170.91 by
eliminating the requirements that the person must have been sentenced prior to January 1,
2015, and to a determinate sentence under section 1170, subdivision (b) to qualify for
resentencing. (Stats. 2022, ch. 721, § 1(a) & (b)(1); § 1170.91, subds. (a) & (b)(1).)
Section 1170.91 now provides that “[a] person currently serving a sentence for a felony
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conviction, whether by trial or plea, who is, or was, a member of the United States
military and who may be 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 may petition for a recall of sentence, before the trial court
that entered the judgment of conviction in the case, to request resentencing if the
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).) This provision explicitly applies retroactively. (§ 1170.91,
subd. (b)(10).)
Additionally, Senate Bill 1209 added a provision excluding a person having a
conviction requiring sex offender registration from relief under section 1170.91.
(§ 1170.91, subd. (c) [“This section does not apply to a person convicted of, or having
one or more prior convictions for, … an offense requiring registration pursuant to
subdivision (c) of Section 290.”].)
C. Standard of Review
“Statutory interpretation is a matter of de novo review. [Citation.] ‘Our
fundamental task … is to determine the Legislature’s intent so as to effectuate the law’s
purpose. We first examine the statutory language, giving it a plain and commonsense
meaning. We do not examine that language in isolation, but in the context of the
statutory framework as a whole in order to determine its scope and purpose and to
harmonize the various parts of the enactment. If the language is clear, courts must
generally follow its plain meaning unless a literal interpretation would result in absurd
consequences the Legislature did not intend.’ ” (People v. Montano (2022) 80
Cal.App.5th 82, 111–112.)
5.
D. Analysis
Although the amendment eliminating the requirement that the person must have
been sentenced to a determinate sentence to qualify for relief under section 1170.91
expressly applies retroactively (§ 1170.91, subd. (b)(10)), defendant still does not qualify
for resentencing. “[S]ection [1170.91] does not apply to a person convicted of, or having
one or more prior convictions for, … an offense requiring registration pursuant to
subdivision (c) of Section 290.” (§ 1170.91, subd. (c).) As noted, defendant was
required to register as a sex offender; therefore, he is not eligible for resentencing under
section 1170.91.
Defendant argues section 1170.91, subdivision (c), does not apply retroactively
because the Legislature failed to include a retroactivity clause under that subdivision
(whereas subdivision (b) does contain a retroactivity clause). He contends “[t]his
suggests the Legislature did not intend for subdivision (c), to apply retroactively.”
To summarize, section 1170.91 contains three subdivisions. Subdivision (a)
provides that a sentencing court must consider a defendant’s military service related
trauma as a factor in mitigation at the time of sentencing. (§ 1170.91, subd. (a).)
Subdivision (b) outlines the mechanism by which a person who is already serving a
sentence can petition for resentencing under the statute. (§ 1170.91, subd. (b).)
Subdivision (c) then provides that section 1170.91 as a whole does not apply to a person
who has been convicted of an offense requiring sex offender registration. (§ 1170.91,
subd. (c) [“This section does not apply to a person convicted of, or having one or more
prior convictions for, … an offense requiring registration pursuant to subdivision (c) of
Section 290.” (Italics added)].)
“ ‘Our task in interpreting a statute “is to ascertain and effectuate legislative intent.
[Citations.]” [Citation.] In order to do so, “[w]e turn first to the words of the statute
themselves, recognizing that ‘they generally provide the most reliable indicator of
legislative intent.’ [Citations.] When the language of a statute is ‘clear and
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unambiguous’ and thus not reasonably susceptible of more than one meaning, ‘ “ ‘ “there
is no need for construction, and courts should not indulge in it.” ’ ” ’ ” ’ ” (People v.
Valliant, supra, 55 Cal.App.5th at p. 908.) The interpretation defendant urges us to
accept would require us to ignore the plain meaning of the language in section 1170.91,
subdivision (c). By using the phrase “[t]his section,” it is clear the Legislature intended
subdivision (c) to apply to both subdivisions (a) and (b). (See § 1170.91, subd. (c).)
Therefore, a person who has been convicted of an offense requiring sex offender
registration is not eligible for relief under newly amended section 1170.91.
We further reject defendant’s equal protection challenge in which he argues that
“[i]t would be a denial of equal protection to find [him] not eligible for relief because of
the enactment of section 1170.91, subdivision (c), when similarly situated offenders were
[previously] granted relief.”
“ ‘The right to equal protection of the law generally does not prevent the state
from setting a starting point for a change in the law. “[T]he Fourteenth Amendment does
not forbid statutes and statutory changes to have a beginning and thus to discriminate
between the rights of an earlier and later time.” [Citation.] The same rule applies to
changes in sentencing law that benefit defendants.’ ” (People v. Baltazar (2020) 57
Cal.App.5th 334, 341.) “ ‘A criminal defendant has no vested interest “ ‘in a specific
term of imprisonment ….’ ” ’ ” (Ibid.) “ ‘[E]qual protection of the law is denied only
where there is no “rational relationship between the disparity of treatment and some
legitimate governmental purpose.” [Citation.] In other words, the legislation survives
constitutional scrutiny as long as there is “ ‘any reasonably conceivable state of facts that
could provide a rational basis for the classification.’ ” [Citation.] This standard of
rationality does not depend upon whether lawmakers ever actually articulated the purpose
they sought to achieve. Nor must the underlying rationale be empirically substantiated.
[Citation.] While the realities of the subject matter cannot be completely ignored
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[citation], a court may engage in “ ‘rational speculation’ ” as to the justifications for the
legislative choice [citation].’ ” (Ibid.)
In enacting Senate Bill 1209, the Legislature considered the equal protection of
veterans. In fact, the “ ‘key point’ ” of amending section 1170.91 was to “ ‘ensure that
veterans that have experienced trauma related to their military service are provided with
the sentencing mitigation and resentencing opportunities [the Legislature has] already
passed into law.’ ” (Assem. Com. on Public Safety, analysis of Sen. Bill No. 1209
(2021–2022 Reg. Sess.) June 14, 2022, p. 3.) According to Senate Bill 209’s author,
“ ‘The initial bill that allowed for sentencing mitigation did not apply to resentencing at
all, treating those veterans who were already incarcerated differently. [In 2018, the
Legislature] corrected this with a bill to allow for resentencing for crimes that occurred
before 2015. Unfortunately, this retroactivity has also been applied unevenly, to such an
extent that … Supreme Court Justice Godwin Liu noted this section of law “fails to
ensure equal treatment of all veterans.” [Senate Bill] 1209 seeks to correct this injustice
against those who have served our country. … This bill ensures those with trauma from
their honorable military service and sacrifice are provided the considerations [we have]
already passed into law.’ ” (Ibid.) However, the Legislature could have reasonably
concluded that persons with certain offenses pose a risk to public safety and should not
be afforded the same considerations. (See People v. Perez (2001) 86 Cal.App.4th 675,
678 [public safety is a legitimate state interest].) Because section 1170.91,
subdivision (c), is rationally related to a legitimate state interest, it does not violate equal
protection.
Finally, we note that even under former section 1170.91, defendant would not be
entitled to relief because he was sentenced pursuant to a stipulated term. As mentioned, a
person who was sentenced pursuant to a stipulated term was ineligible for relief under
former section 1170.91. (King, supra, 52 Cal.App.5th at pp. 790–791; accord, Brooks,
8.
supra, 58 Cal.App.5th at p. 1106; accord, People v. Pixley, supra, 75 Cal.App.5th at
p. 1008.)
DISPOSITION
The trial court’s order denying defendant’s petition is affirmed.
9.