CA Unpub Decisions

Following a jury trial, defendant Robert Lee Stephens was convicted of one count of assault with a deadly weapon. In this appeal, defendant argues (1) the trial court imposed a sentence that violated the state’s constitutional prohibition against cruel or unusual punishment, (2) the trial court abused its discretion by not granting a motion that would have stricken one of his prior convictions for purposes of sentencing, and (3) a remand is necessary for resentencing due to recent legislative changes. After considering all issues raised in this appeal, we find the sentence imposed did not constitute cruel or unusual punishment, and the trial court did not abuse its discretion when failing to strike one of defendant’s prior convictions at the time of sentencing. However, a remand is now necessary to vacate the sentence imposed and resentence defendant consistent with legislative changes made to the relevant sentencing laws since he was last sentenced in this case.

Defendant and appellant, Nehemiah Robinson, filed a petition for resentencing pursuant to Penal Code section 1170.95, which the court denied after holding an evidentiary hearing. On appeal, defendant contends the court erred in denying his petition. We affirm.

Brian Lincoln got into a confrontation with Corey Herring and James Tillman in the parking lot of a liquor store in Victorville. Herring had been trying to get Lincoln to help pay for damages caused in an earlier automobile accident. Lincoln left the parking lot, but returned with appellant, Kewetha Lavory Darrington, Jr., and William Blalock. The confrontation resumed and then escalated into violence. Blalock punched Herring, knocking him to the ground. Darrington then fired a gun at both Tillman and Herring before fleeing. A jury convicted Darrington of two counts of attempted murder over his claim to have acted in self-defense or defense of another.
Darrington argues the trial judge erred by instructing the jury on whether they could find he was engaged in self-defense if the men were engaged in mutual combat.

Claudia Elena Tesak de Rushin (Claudia) filed this action to dissolve her marriage to Darren Rushin (Darren) in 2018. In January 2020, while Claudia’s mother, Ildiko Juhasz de Tesak (Ildiko), was visiting California, Darren personally served Ildiko with a subpoena directing her to appear at a deposition. After Ildiko failed to appear, Darren filed a request for an order to compel Ildiko’s appearance at a deposition.
Claudia and Ildiko filed separate oppositions to Darren’s request. In her opposition, Claudia argued that the trial court lacked subpoena jurisdiction over Ildiko. Specifically, Claudia argued that Ildiko was not a resident of California, as is required for a subpoena to be enforceable under Code of Civil Procedure section 1989.

The 12-year-old minor A.B. was declared a ward of the court under Welfare and Institutions Code section 602 after the juvenile court found true allegations he molested his six-year-old cousin. At the start of the jurisdiction hearing, the juvenile court noted it may have reviewed a report prepared by a psychologist under Penal Code section 288.1. On appeal A.B. makes two contentions: (1) the juvenile court committed prejudicial error by considering the section 288.1 report before the jurisdiction hearing; and (2) he did not understand the wrongfulness of his actions. We affirm.

Defendant Andre Harris appeals the superior court’s denial of his petition for resentencing under Penal Code section 1170.95 (statutory section citations that follow are to the Penal Code unless otherwise stated). He contends the superior court erred by finding he did not make a prima facie showing that he was entitled to relief, by relying on an incorrect standard of proof, by summarily denying his petition without issuing an order to show cause or holding an evidentiary hearing, and by relying on the record of conviction to conclude defendant was ineligible for relief under section 1170.95 as a matter of law. We affirm the judgment.

Defendant Branden Willie Iseli attacked his great-uncle and great-grandfather with a knife, killing his great-uncle and inflicting life-threatening injuries on his great-grandfather. A jury convicted defendant of attempted murder with premeditation and deliberation, along with elder abuse with respect to his attack on his great-grandfather (Pen. Code, §§ 664/187, subd. (a), 368, subd. (b)(1)), but it could not reach a verdict on a charge of murdering the great-uncle. In a second trial, a jury convicted defendant of first degree premeditated murder of his great-uncle. (§§ 187, subd. (a), 189, subd. (a).) The trial court sentenced defendant to a term of 25 years to life for first degree murder, with a consecutive term of life with the possibility of parole for attempted murder and five years for inflicting great bodily injury on an elder. The trial court imposed and stayed the upper term for elder abuse.

After homeowners in a Sacramento County residential development won a judgment against the developer of their homes for over $4 million, they sued Steadfast Insurance Company (Steadfast), the developer’s insurer, alleging Steadfast had a duty to defend and indemnify the developer in the underlying lawsuit, and that, as judgment creditors and assignees of the developer, homeowners were entitled to recover from Steadfast. The trial court entered summary judgment in favor of Steadfast, ruling the company had no duty to defend or indemnify the developer in the underlying lawsuit because the developer never paid the “self-insured retention” (also known as an SIR), a condition precedent to Steadfast’s obligations to the developer under a Home Builders Protective Insurance Policy (the policy). On appeal, homeowners argue satisfaction of the self-insured retention was not a condition precedent.

Adrian Armando Chaparro appeals from an order denying his petition for resentencing under Penal Code section 1170.95. His appellate counsel filed a brief asking this court to proceed under People v. Wende (1979) 25 Cal.3d 436 (Wende). We affirm.

Derrick Devon Jones appeals from an order denying his petition to vacate a restitution fine of $400 imposed under Penal Code section 1202.4, subdivision (b). We affirm.
On May 8, 2002, Jones pleaded guilty to one count of the sale of marijuana. The imposition of sentence was suspended and he was placed on probation. Jones was found in violation of probation and, on February 21, 2003, he was sentenced to a term of imprisonment of two years. The court also imposed a restitution fine of $400 pursuant to section 1202.4, subdivision (b). The court imposed but stayed a parole revocation restitution fine of $400 under section 1202.45.
Jones filed a petition in the superior court to vacate the restitution fine assessed under section 1202.4, subdivision (b). Jones relied on Assembly Bill No. 1869 as authority for his petition. The court denied the petition, and Jones filed a timely appeal from that order.

Derrick Devon Jones appeals from an order denying his petition to vacate a restitution fine of $2,000 imposed under Penal Code section 1202.4, subdivision (b). We affirm.
On February 21, 2003, Jones pleaded nolo contendere to a count of second degree robbery. He admitted the personal use of a firearm (§ 12022.5, subd. (a)) and to being armed with a firearm (§ 12022, subd. (a)(1)). He was sentenced to 10 years in prison. The court also imposed a restitution fine of $2,000 under section 1202.4, subdivision (b). The court imposed but stayed a parole revocation restitution fine of $2,000 under section 1202.45.
On August 11, 2021, Jones filed a petition in the superior court to vacate the restitution fine assessed under section 1202.4, subdivision (b). Jones relied on Assembly Bill No. 1869 as authority for his petition. The court denied the petition on the ground that Assembly Bill No. 1869 did not apply to restitution fines imposed under section 1202.4, subdivision (b).

In 2011, defendant and appellant Robert Gutierrez was convicted of second degree murder. (Pen. Code, § 187.) He was sentenced to 40 years to life in state prison. Defendant appealed his conviction, and on October 3, 2012, we affirmed the judgment. (People v. Gutierrez (Oct. 3, 2012, B233166) [nonpub. opn.], p. 2 (Gutierrez I).)
On February 11, 2019, defendant filed a petition for resentencing under section 1170.95, arguing that he was entitled to relief because he was convicted of second degree murder pursuant to the natural and probable consequences theory, as an aider and abettor of an assault, and could not be convicted of murder under the newly amended sections 188 and 189. The trial court denied his petition, and defendant appealed. On July 28, 2020, we reversed the trial court’s order and remanded the matter for the trial court to issue an order to show cause and hold a hearing pursuant to section 1170.95, subdivision (d).

Jose Rene Salinas appeals from a postjudgment order denying his petition for resentencing under Penal Code section 1170.95. Appellant contends the trial court erred in considering his testimony at his parole suitability hearing in finding beyond a reasonable doubt that he directly aided and abetted the second degree murder of which he was convicted. We conclude that appellant’s testimony was admissible at the evidentiary hearing on his section 1170.95 petition for resentencing, and that any error in its admission was harmless. (People v. Myles (2021) 69 Cal.App.5th 688, 704-705, review denied Dec. 15, 2021.) Accordingly, we affirm.

A jury convicted appellant Jonathan Sioteco of elder abuse (Pen. Code, § 368, subd. (b)(1) ) and found true allegations he inflicted great bodily injury on the victim (§ 12022.7, subd. (c)), and personally used a deadly weapon (§ 12022, subd. (b)(1)). It also convicted him of misdemeanor assault (§ 240) and resisting, obstructing, or delaying a police officer (§ 148, subd. (a)(1)). The trial court suspended imposition of sentence and released appellant on three years of felony probation including a condition he enroll in a treatment program. It later found he violated the terms of probation and sentenced him to seven years in prison: the lower term of two years on the elder abuse charge, plus five years on the great bodily injury enhancement.