Filed 1/21/20 P. v. Kilijanski 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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,

Plaintiff and Respondent,

v.

ERIC KILIJANSKI,

Defendant and Appellant.

F079419

(Super. Ct. No. MF011302A)

OPINION

THE COURT*

APPEAL from an order of the Superior Court of Kern County. John S. Somers, Judge.

Conness A. Thompson, under appointment by the Court of Appeal, for Defendant and Appellant.

Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.

-ooOoo-

Appointed counsel for defendant Eric Kilijanski asked this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised of his right to file a supplemental brief within 30 days of the date of filing of the opening brief. Defendant responded, contending the trial court erred in denying his petition for resentencing under Penal Code section 1170.91. Finding no arguable error that would result in a disposition more favorable to defendant, we affirm.

BACKGROUND

On July 14, 2014, defendant shot at his neighbor’s house full of playing children and at the car his stepdaughter and her children were driving away from defendant’s home.

On January 28, 2015, defendant pled no contest to assault with a firearm (§ 245, subd. (a)(2); count 15), discharging a firearm at an inhabited dwelling (§ 246; count 29), and discharging a firearm at an occupied vehicle (§ 246; count 31). He admitted personally using a firearm in the commission of count 15 (§ 12022.5, subd. (a)). In exchange for the plea, the remaining counts and allegations would be dismissed and defendant would be sentenced to 14 years in prison, as follows: four years on count 15, plus 10 years for the firearm enhancement, and seven concurrent years on both counts 29 and 31.

At the sentencing hearing on February 26, 2015, defendant made the following statement to the court:

“I am at a great loss for the right words to fully express my deepest sorrow for causing the past horrible event and wish with all of my heart that it had never happened. Please do not base your impression of me solely on this one very rare and isolated event.

“I was raised as a Catholic and have always been a God fearing man, walking the straight and narrow path and possess high moral standards.

“I have never ever been arrested before in my entire 60 years of life and have an absolutely clean record with not even a traffic ticket.

“I take great pride in my work to provide high quality service to the men and woman of the United States Air Force to try to protect and preserve all of your freedoms. In 2013 I received a letter of appreciation for my service from President Obama.

“For the past 38 years I have served our great nation in the United States Air Force active duty, reserves, and the civil service. During that time I have made great personal sacrifices, endured painful family separations, flew dangerous overseas missions in harm’s way subject to being shot down, after which I suffered the lingering effects of traumatic stress resulting in my excessive drinking as an attempt to relieve those great pressures and became one of the victims of Post Traumatic Stress Disorder during the Cold War.

“I can assure you that incident back in July was an extreme aberration on my behalf. That was totally, totally out of character due only to my compulsive, pathological, over–intoxication. I thank God every day that no one was seriously hurt and pray every day to that effect.

“I wholeheartedly regret those actions and am extremely remorseful for them. That incident has caused me great anguish, leaves me with a constant heartache that I will endure for a long time to come.

“I ask for their forgiveness as a very unwise act. It was an extremely rare case brought on solely by excessive intoxication that will never ever be repeated.

“My actions that day were entirely opposite to my typical steadfast behavior, and I’m highly embarrassed I acted that way.

“Please accept my sincerest apology for this most egregious act as it was unwarranted, unintentional, and contrary to my usual well–meaning nature. I am deeply sorry for and regret such a stupid and senseless act among my neighbors and friends. Please, I am [sic] implore you to grant me your forgiveness.

“In conclusion, it is my hope that other veterans in similar situations receive fair treatment from the justice system in accordance with [section] 1170.9[ subdivision ](h)(1). It is—I quote, it is in the interest of justice to restore a defendant who acquired a criminal record due to a mental health disorder stemming from service in the United States military to the community of law-abiding citizens, end quote.

“As such for true justice to prevail, we need rehabilitation more and not just only incarceration. That only serves to collaterally destroy more lives than it appears to save.

“Respectfully submitted 26 February 2015, Eric Kilijanski, Captain United States Air Force Reserve.”

The court then heard statements from the parents of the children who were inside the house and defendant’s stepdaughter. The court stated the following:

“In this matter there are a variety of interests, competing interests, in regards to sentencing on both sides that the Court has to keep in mind. This being a negotiated plea and stipulated sentence, my options are two only. One is to follow the negotiated disposition, which was thoroughly discussed and arrived at in agreement with counsel, and the other option I have is to reject the negotiated plea, and the negotiated plea, which I know counsel discussed extremely thoroughly on a couple of occasions, adequately, and appropriately reflects the balance of interests on both sides which are relevant here.

“Ultimately, with all respect toward Mr. Kilijanski’s previous work service to the country, it is well said that his service was to protect the citizens of the country, and he most certainly did not do so here.

“Under the circumstances of all of the interests that are in play I think, as I’ve indicated, are appropriately reflected in the negotiated disposition in this case.”

The court then imposed sentence as agreed.

On March 13, 2019, defendant filed with the trial court a petition for recall of sentence for consideration of eligibility for resentencing under section 1170.91. He stated:

“[Defendant’s] traumatic service events that resulted in alcoholism and PTSD were not considered as mitigating factors at all throughout the Judicial Process that led to his present incarceration. [Defendant] prays that this HONORABLE COURT grants relief in the form of a lower sentence.”

On May 6, 2019, the trial court denied the section 1170.91 petition, stating:

“The court has received and considered the defendant’s Petition for Recall of Sentence, filed pursuant to Penal Code section 1170.91. That section was enacted and signed into law in 2014 and took effect January 1, 2015.

“[Defendant] served in the United States military and suffers from Post Traumatic Stress Disorder, an issue that was raised and considered by the court at the time of sentencing. His petition for recall of sentence, however, fails to meet the requirements specified in section 1170.91, and will therefore be denied.

“Section 1170.91 permits the court to recall and reconsider the sentence previously imposed where both of two requirements are met. The first is that the fact of defendant’s military service and/or his resultant post traumatic stress disorder was not presented to and considered by the Court at sentencing. As previously noted, this issue was raised and was considered by the court when imposing sentence.

“The second requirement is that the section only applies to cases where the defendant was sentenced before the law’s effective date of January 1, 2015. [Defendant], however, was sentenced on February 26, 2015, nearly two months after that date.

“Since [defendant’s] case does not qualify for recall of sentence, the Petition is hereby denied.”

On June 3, 2019, defendant filed a notice of appeal. His request for a certificate of probable cause was denied.

DISCUSSION

Section 1170.91 states: “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 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 may petition for a recall of sentence, before the trial court that entered the judgment of conviction in his or her case, to request resentencing pursuant to subdivision (a) if the person meets both of the following conditions: [¶] (A) 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. [¶] (B) The person was sentenced prior to January 1, 2015. This subdivision shall apply retroactively, whether or not the case was final as of January 1, 2015.” (§ 1170.91, subd. (b)(1), italics added.)

Here, defendant did not satisfy either of the two conditions, and thus the trial court properly denied his section 1170.91 petition.

Having undertaken an examination of the entire record, we find no evidence of ineffective assistance of counsel or any other arguable error that would result in a disposition more favorable to defendant.

DISPOSITION

The order denying the section 1170.91 petition is affirmed.