People v. Piola CA1/1

Filed 4/12/22 P. v. Piola CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, Plaintiff and Respondent, A162316 v. LEE WARREN PIOLA, (Humboldt County Super. Ct. No. CR093142S) Defendant and Appellant.

Defendant Lee Warren Piola appeals from an order denying his petition pursuant to Penal Code1 section 1170.91, subdivision (b)(1), which provides for resentencing of military members or veterans suffering from certain mental health and substance abuse problems as a result of military service, if the sentencing court did not consider such problems as factors in mitigation. Defendant argues the trial court erred in summarily denying his petition for recall of sentence without holding a hearing to determine whether he satisfied the criteria in this subdivision for resentencing. We agree, and reverse and remand for further proceedings.

1 All statutory references are to the Penal Code.

I. BACKGROUND Defendant fired a semiautomatic weapon repeatedly at his neighbors and their home over the course of an hour, wounding one of the neighbors seriously.2 In 2009, defendant pled guilty to two counts of assault with a deadly weapon, a semiautomatic firearm (§ 245, subd. (b)) and admitted allegations he personally used a firearm (former § 12022.5, subd. (a)) and caused great bodily injury (§ 12022.7, subd. (a)). There was no negotiated term. The trial court imposed the concurrent midterm sentences of six years on each count, a consecutive upper term of 10 years on the firearm enhancement, and a consecutive term of three years on the great bodily injury enhancement for a total of 19 years. During the sentencing proceedings, the court mistakenly stated it was legally precluded from considering defendant’s mental illness and various other factors in mitigation and aggravation in setting the term. Though the court recognized defendant had emotional problems and was relatively old, “given the magnitude of the violence and infliction of the physical and emotional injuries,” the court concluded the sentence was “appropriate.” Defendant appealed, and we affirmed the judgment in August 2011, concluding that even though the trial court had erred in failing to consider several factors in mitigation, among them defendant’s mental illness, the error was harmless. (Piola I, supra, A127716.) Several years after the issuance of Piola I, on January 1, 2015, section 1170.91 became effective, and in February 2021, defendant filed a