People v. Tejada CA6

Filed 9/25/24 P. v. Tejada CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H051238 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. F1766955)

v.

MILTON WUESHTERBERG TEJADA,

Defendant and Appellant.

Defendant Milton Wueshterberg Tejada appeals from the court’s denial of his petition to vacate various fines and fees pursuant to Penal Code section 1202.41 and resentence him pursuant to former section 1170, subdivision (d)(1)2, and section 1170.91, subdivision (b). For the reasons stated below, we affirm the order. I. PROCEDURAL BACKGROUND3 On March 15, 2018, a jury convicted Tejada of sexual penetration by force or violence (§ 289, subd. (a)(1); count 1), two counts of sexual battery (§§ 242, 243.4, subd. (a); counts 2 & 3), and two counts of oral copulation by force or violence (former § 288a,

1 Undesignated references are to the Penal Code. 2 Assembly Bill No. 1540 (2021–2022 Reg. Sess.) (Stats. 2021, ch. 719, §§ 1–7) moved the recall and resentencing provisions from section 1170, subdivision (d)(1) to former section 1170.03, which has since been renumbered without substantive change as section 1172.1. (See Stats. 2022, ch. 58, § 9.) We hereafter refer to the statute as section 1172.1. 3 Because the facts of the underlying matter are not relevant to the issues raised on appeal, we do not recount them here.

subd. (c)(2)(A); counts 4 & 5). The trial court sentenced Tejada to an aggregate state prison term of 15 years. In 2021, this court affirmed the convictions on appeal, but reversed the judgment and remanded the matter for the trial court to vacate the unpaid portion of the criminal justice administration fee and itemize all fines, fees, and penalty assessments imposed, identifying the statutory basis for each.4 (People v. Tejada (December 20, 2021, H045928) [nonpub. opn.] (Tejada).) On remand, the trial court filed an order on April 11, 2022 in compliance with this court’s opinion, and issued an amended abstract of judgment on April 12, 2022. On April 18, 2023, in the trial court, Tejada filed three separate motions as follows: (1) an “Ex Parte Motion” to vacate the court’s security fees, conviction assessments, and restitution fines pursuant to section 1202.4; (2) a motion for resentencing pursuant to section 1172.15 ; and (3) a motion for resentencing pursuant to section 1170.91, subdivision (b), based on health conditions due to his military service. The record does not reflect the District Attorney’s Office was served with or filed responses to any of these motions. On June 16, 2023, the trial court filed an order denying Tejada’s motions. In its order, the court noted that most of Tejada’s arguments regarding the fines and fees had