People v. Gniech CA3

Filed 10/24/22 P. v. Gniech CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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