People v. Sevchuk CA3

Filed 11/15/22 P. v. Sevchuk CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE, C094322

Plaintiff and Respondent, (Super. Ct. No. 05F09184)

v.

GENADIY SEVCHUK,

Defendant and Appellant.

In March 2007, a jury acquitted defendant Genadiy Sevchuk of first degree premeditated murder but found him guilty of second degree murder. In 2019, defendant filed a petition for resentencing under Penal Code1 section 1170.95 (now section 1172.6)2

1 Undesignated statutory references are to the Penal Code. 2 Effective June 30, 2022, the Legislature renumbered section 1170.95 to section 1172.6 with no change in text. (Stats. 2022, ch. 58, § 10.) For purposes of clarity and conformity with the petition, we will refer to the statute as section 1170.95 throughout the opinion.

1

alleging he could not be convicted of second degree murder based on changes to the Penal Code. The trial court issued an order to show cause, held an evidentiary hearing, and then denied defendant’s petition for relief finding beyond a reasonable doubt defendant guilty of aiding and abetting implied malice murder. On appeal, defendant contends the trial court’s finding is collaterally estopped because it is inconsistent with the already litigated first degree murder charge of which he was acquitted. We conclude the findings are not inconsistent because the first degree premeditated murder charge required the jury to find defendant had the intent to kill the victim, whereas an intent to kill is not necessary for aiding and abetting implied malice murder. Thus, we affirm. BACKGROUND A. Original Proceedings Defendant accompanied his friend Maksim Yuryevech Isayev to confront Dmitriy Paskar, who allegedly raped Isayev’s ex-girlfriend; Isayev ended up shooting and killing Paskar. (People v. Isayev et al. (July 19, 2011, C055417) [nonpub. opn.].)3 In March 2007, a jury found defendant guilty of second degree murder, acquitting him of first degree murder, and found true defendant was a principal and a principal who was armed with a firearm. (§ 12022, subd. (a)(1).) The jury for defendant’s trial was provided several instructions on murder, including CALCRIM No. 520, which explains murder required malice aforethought, which could be express or implied malice. For implied malice, it stated the jury could find defendant guilty of murder if (1) he “intentionally committed an act”; (2) “[t]he natural consequences of the act were