People v. Rymalowicz CA5

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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 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