CA Unpub Decisions

Defendant Joel Gonzalez Garcia pleaded no contest to two counts of gross vehicular manslaughter while intoxicated (Pen. Code, § 191.5, subd. (a)); counts 1 and 2) and driving under the influence of alcohol causing injury (Veh. Code, § 23153, subd. (a); count 3). The trial court sentenced Garcia to the midterm of six years on count 1, one-third the midterm (two years) on count 2, and one-third the midterm (eight months) on count 3, to run consecutively, for an aggregate term of eight years and eight months in state prison. Garcia was 21 years old at the time of the offense.
Garcia contends that under the newly-amended version of section 1170, subdivision (b), his sentence must be vacated and the case remanded for resentencing.
Effective January 1, 2022, section 1170 was amended in several ways. (See People v. Flores (2022) 73 Cal.App.5th 1032, 1038 (Flores) [citing Sen. Bill No. 567, Stats. 2021, ch. 731, § 1.3].)

Defendant Sebastian Anguiano Botello pleaded no contest to first degree burglary (Pen. Code, § 459; count 1) and discharge of a firearm with gross negligence (§ 246.3, subd. (a); count 2), along with three other charges. Counts 1 and 2 each contained a special allegation that Botello committed the offense while armed with a firearm, in violation of section 12022, subdivision (a)(1). The trial court sentenced Botello to the low term of two years on count 1, and to concurrent mid-term sentences for the remaining counts. The court stayed punishment on the firearm enhancement allegations on counts 1 and 2.
Botello makes two arguments on appeal. He contends that the abstract of judgment should be corrected to reflect that the trial court stayed punishment on the firearm enhancement as to count 1, and that the firearm enhancement for count 2 should be stricken. The Attorney General concedes both arguments.

According to the probation report, the victim was working at a convenience store when Rodriguez and another man came in, pointed a gun at the victim, and demanded all of the money. The victim complied. Rodriguez and the other man attempted to bind the victim’s hands and told him not to move or call the police, or they would come back and kill him and his family. Rodriguez and the other man fled by car, and were later seen running a stop sign. An officer attempted to stop the car, but the two refused to stop. A vehicle pursuit ensued. Officers observed objects, including a firearm, cash, and ammunition, being thrown out of the car. The pursuit took approximately 56 miles and reached speeds in excess of 100 miles per hour until the suspect vehicle crashed. Rodriguez initially declined to speak about the offense, but later admitted that he was a Sureño gang member and that he and the other man planned the robbery.

In the operative first amended complaint, Plaintiffs sought civil penalties under PAGA on behalf of themselves and “other aggrieved employees” of Varsity for alleged Labor Code violations, including the failure to pay minimum wage, overtime, and reimbursement of necessary employee expenditures; intentional misclassification of employees as independent contractors; failure to provide timely, accurate, itemized wage statements; failure to provide meal and rest breaks; and requiring employees to waive all rights to pursue any dispute on a representative basis. Plaintiffs alleged that Charles exhausted the administrative prefiling requirements by sending a notice to the Labor and Workforce Development Agency (LWDA).
Plaintiffs served Varsity with form interrogatories, requests for document production, and requests for admission. Varsity responded principally with objections.

In December 2018, an attorney for Shuangling Yin filed a request for a domestic violence restraining order against her ex-boyfriend, Qiaochu Aaron Li. Yin’s supporting declaration described harassing conduct by Li following their summer breakup, an incident in October which culminated in Li’s arrest at a Starbucks cafe, and continued inappropriate conduct afterward. Five days later, Li filed his own request for a domestic violence restraining order seeking protection from Yin for himself and a coworker whom he had also dated. Li’s supporting declaration focused on an incident in August 2018 when Yin went to his workplace uninvited and physically assaulted him.
The court issued temporary restraining orders, and a hearing was scheduled for January 2019. Li retained counsel, and the matter was continued to June and then August 2019. Li’s attorney withdrew in July 2019, and Li represented himself for the remainder of the proceedings.

In December 2018, an attorney for Shuangling Yin filed a request for a domestic violence restraining order against her ex-boyfriend, Qiaochu Aaron Li. Yin’s supporting declaration described harassing conduct by Li following their summer breakup, an incident in October which culminated in Li’s arrest at a Starbucks cafe, and continued inappropriate conduct afterward. Five days later, Li filed his own request for a domestic violence restraining order seeking protection from Yin for himself and a coworker whom he had also dated. Li’s supporting declaration focused on an incident in August 2018 when Yin went to his workplace uninvited and physically assaulted him.
The court issued temporary restraining orders, and a hearing was scheduled for January 2019. Li retained counsel, and the matter was continued to June and then August 2019. Li’s attorney withdrew in July 2019, and Li represented himself for the remainder of the proceedings.

As three teenagers socialized next to an abandoned railroad right-of-way, two males, later identified as defendant and Luis Mendoza, climbed over a nearby fence and approached them. Mendoza asked the group where they were from, to which one replied they were not from anywhere. He repeated his question as one of the three, M.G., took steps toward him. Mendoza pulled out a semiautomatic pistol from his waistband. M.G. again responded to the question, this time stating, “We don’t claim anybody. If you’re going to shoot us, shoot us.”
The situation escalated with defendant and Mendoza both declaring they were from “Hard Times” or saying “this is Hard Times.” Mendoza followed up by shooting M.G. in the shoulder and in each leg. M.G. fell to the ground and the two others in his group started to run away. Mendoza proceeded to fire three or four more shots in their direction as they ran, then he and defendant took off on foot in a different direction.

This is the second appeal by defendant and appellant, Christopher Daniel Perez, following resentencing. Defendant was convicted by a jury of eight offenses arising out of three separate incidents of domestic violence. (People v. Perez (Dec. 4, 2020, E073399 [nonpub. opn.]) (Perez I).) In Perez I, this court affirmed the judgment, but remanded the matter for resentencing.
At resentencing, the trial court imposed the upper term on the principal offense but failed to provide a statement of reasons in support of its decision to do so. Shortly after defendant’s resentencing, Penal Code section 1170 was amended to prohibit a trial court from imposing an upper term sentence unless there are aggravating circumstances, and the defendant has either stipulated to the facts underlying those circumstances or those facts were found true beyond a reasonable doubt. (§1170, subd. (b)(1)-(2); People v. Flores (2022) 75 Cal.App.5th 495, 500.)

On October 16, 2020, this court issued an unpublished opinion in defendant’s underlying appeal in People v. Quiroz (Oct. 16, 2020, E069820) [nonpub. opn.] (Quiroz1). In Quiroz1, we reversed two attempted murder counts pursuant to the Supreme Court’s intervening decision in People v. Canizales (2019) 7 Cal.5th 591, on the kill zone theory, and one of the conspiracy counts. We remanded the case to the trial court for resentencing.
On June 11, 2021, the trial court resentenced defendant to 25 years to life, plus four years in state prison.
On July 19, 2021, defendant filed a notice of appeal regarding his sentence.
DISCUSSION
Defendant’s sole contention on appeal is that the enactment of AB 518 requires this case to be remanded to the trial court so the court can exercise its discretion under newly-amended section 654. The People agree that AB 518 applies retroactively to defendant and the case should be remanded. We agree with the parties.

Defendant had a son with his ex-girlfriend, Desseray Mariscal. Shortly after they broke up, Mariscal began a relationship with the victim, Rudy Areyan.
Mariscal and Areyan got into an argument when they were doing laundry together at a laundromat. Mariscal left the laundromat with her son in her car and told Areyan that she needed to “cool off.” Areyan followed Mariscal in his car as she drove away. Mariscal texted him, telling him to go away, but he continued following her.
While driving, Mariscal called defendant and told him about the situation. Defendant was concerned about his son and told Mariscal to meet him where he was. He told Mariscal that he would “deal with it.” Mariscal drove to where defendant was located.
The evidence about what happened next is conflicting. According to Mariscal, when she arrived at defendant’s location, defendant was outside waiting for her and Areyan, who was still following her.

Defendant and his girlfriend, Cricket, lived in a tent with Jesus Renteria in a tight-knit homeless camp along the Santa Ana River in Riverside. Defendant was acquainted with victim Michael Carmona, known as “Bear,” and had fought with him on occasion.
In June 2016, defendant and Carmona started fighting after Carmona pushed Cricket down and struck her, after kicking Cricket’s dog. Defendant and Carmona wrestled for 15 or 20 minutes, until defendant felt he was going to have a seizure and let go of Carmona to go down to the river. When he left, “Colt” intervened and administered a choke hold until Carmona lost consciousness.
A short time later, when Carmona regained consciousness, Renteria went into a tent, came out with a knife and proceeded to stab Carmona multiple times. When the stabbing stopped, Carmona emitted gargling and gasping sounds and appeared to be dying. Renteria handed the knife to another camp resident, Peter Strother, who had observed the stabbing, and left.

APPEAL from an order of the Superior Court of San Diego County, Michael T. Smyth, Judge. Affirmed.
Pierre Readus, in pro. per.; and Stephen M. Vasil, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
This appeal is from the denial of a post-judgment petition for resentencing of a robbery conviction under Penal Code section 1170.18 (Proposition 47). Robbery convictions cannot be resentenced as misdemeanors under that statute as a matter of law.
In 2004, Pierre Renee Readus pleaded guilty to robbery (§ 211) and evading an officer with reckless driving (Veh. Code, § 2800.2, subd. (a)). Readus was granted probation, but after a series of probation revocations, in 2005, he was sentenced to prison for two years eight months.
In 2021, Readus filed a petition for resentencing under section 1170.18 to resentence his robbery conviction as a misdemeanor.

As Rubalcaba does not challenge the sufficiency of the evidence to support his convictions, we set forth the facts relating only to his crimes against C.M. to provide context for his contention that we should reverse his count 3 conviction because the court improperly amended the information.
C.M. was 29 years old at the time of trial, and testified that as a minor he lived in El Nido, California, across the street from his best friend, whose father was Rubalcaba. Starting when C.M. was 12 years old, Rubalcaba touched C.M. inappropriately more than five times, including touching C.M.’s buttocks and penis when C.M. slept over at Rubalcaba’s house. Rubalcaba used to let C.M. sit in his lap and drive Rubalcaba’s car. On one such occasion, when C.M. was 12 years old, Rubalcaba touched C.M.’s chest and stomach under his clothes. On another occasion, Rubalcaba took him to pick grapes and told him to suck Rubalcaba’s penis, and C.M. did so briefly.

An October 2019 search of defendant’s residence pursuant to a warrant yielded substantial quantities of methamphetamine and marijuana, a digital scale, $4,037 in cash, used pipes, small bags containing methamphetamine, and jars containing marijuana. In case No. 20CF00122 (case No. 122), defendant was charged with felony possession of methamphetamine for sale (Health & Saf. Code, § 11378) and felony possession of cannabis for sale (id., § 11359, subd. (b)).
Defendant was later arrested after briefly attempting to flee from officers on his bicycle. In his backpack, officers found a large bag of marijuana, a used pipe, and methamphetamine. In case No. 19CM08204 (case No. 204), defendant was charged with three misdemeanors: resisting arrest (Pen. Code, § 148, subd. (a)(1)), possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)), and possession of a smoking device (id., § 11364, subd. (a)).