California Court of Appeal Jan 11, 2024 No. E081464Unpublished
Filed 1/11/24 P. v. Stewart CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E081464
v. (Super.Ct.No. BAF1700447)
TRAEVON DENAE STEWART, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Kelly L. Hansen, Judge.
Affirmed.
Randi Covin, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
1
STATEMENT OF THE CASE
On October 8, 2019, a second amended information charged defendant and
appellant Traevon Denae Stewart with murder under Penal Code section 187 (count 1);
attempted robbery under Penal Code sections 664 and 211 (count 2); kidnapping under
Penal Code section 207, subdivision (a) (count 3); assault with a semiautomatic firearm
under Penal Code section 245, subdivision (b) (count 4); evading a peace officer under
at approximately 75 miles an hour, in areas with speed limits of 35 and 45 miles an hour,
and did not stop at stop signs. Defendant jumped out of his mother’s car while it was
moving. Approximately one hour and 40 minutes later, defendant surrendered and was
arrested.
“C. DEFENDANT’S STATEMENT
“Defendant spoke with Riverside County Sheriff’s investigators after being
arrested. During the police interview, defendant said, ‘I do a lot of drugs’ and ‘Like I
said, I do a lot of drugs.’ Investigator Stoyer asked if defendant consumed drugs on
Friday when defendant went to the victim’s apartment. Defendant replied, ‘Of course.’
When asked about the type of drugs he abused, defendant said, ‘I smoke sherm and, uh
crystal meth.’ Defendant also said he takes pills for pain.
“Investigator Stoyer asked defendant if an argument occurred on Friday night.
Defendant replied, ‘I be so high and drugged up, I don’t know.’ Defendant went on to
discuss his recollection of the events of Friday night. According to defendant, Bird owed
defendant $1,400 for the money that Bird stole from defendant and the drugs and alcohol
9
that defendant purchased for Bird. The victim said she would give defendant the money
that Bird owed defendant, but the victim never gave defendant the money. Defendant
explained that the victim and Girlfriend would beat Bird, give Bird drugs, and/or
prostitute themselves with Bird in order to keep Bird’s money.
“Bird told defendant that Girlfriend took the check that defendant wanted. On the
night of April 28, 2017, defendant and Bird went to the victim’s and Girlfriend’s
apartment. The victim said Girlfriend had the money, but Girlfriend denied that
allegation. Defendant shot the victim’s foot. The victim urinated on herself. The victim
rifled through papers and then said, ‘ “I got it.” ’ Defendant said, ‘ “Show me, show me,
show me.” ’ Another person said they had about 90 seconds until the police arrived at the
apartment.
“The victim said the check was at Sleeps’s apartment. Defendant and the victim
went to Sleeps’s apartment, and Bird brought the car around. Defendant and the victim
left Sleeps’s apartment with mail and entered the car. Defendant was driving, and the
victim was in the backseat on the passenger side. While driving down various streets, the
victim was searching through the stack of mail.
“The victim did not have Bird’s check. The victim was scared, and then she
jumped out of the car while it was moving. Defendant said, ‘So, whatever happened to
her when she got out of my car, I don’t know.’ After the victim jumped out of the car,
defendant and Bird went to Okoro’s house. Defendant then went to his mother’s house
where he cried. Investigator Stoyer asked defendant why defendant shot the victim inside
the car. Defendant said he did not recall shooting the victim inside the car.
10
“Investigator Dickey asked what happened to the gun after the shooting in the
apartment. Defendant said he put the gun in the car’s center console upon entering
the car with Bird and the victim. Defendant said that, while driving in the car with Bird
and the victim, defendant realized that the situation ‘went too far’ because the police had
been called due to the shooting in the apartment. The following exchange occurred
between defendant and Investigator Dickey:
'Defendant: ‘So I told [Bird], “No, motherfucker, you do it.”
‘Dickey: You do what?
‘[Defendant]: ‘You shoot her.’
‘Dickey: Shoot who?
‘[Defendant]: [The victim].
‘Dickey: In the car?
‘[Defendant]: Yeah, so I gave [Bird] the gun, [Bird] sat up on his knees and got
behind the seat and he was like, “ ‘Give me the fuckin’ check . . . . Give me the check.” ’
And she wouldn’t give him the check at all. Just adamant about—“Just give him the
fuckin’ check.” I’m tryin’ to tell her, “Why don’t you just fuckin’ give it to him? It ain’t
yours, it’s his. Give it to him.” I never seen him shoot, nothin’. All I heard was the
shots and that’s when I motherfucking looked back and she was already jumpin’ out of
the car. Already. Instantly. Soon as I heard the bow, that was the first one. I guess
that’s because she just did it on him. ‘Cause I never seen her do it. When I looked back,
she was—all I can see was her body goin’ out. I didn’t see her open the door, I didn’t see
none of that part. All I seen was her going out of the car.’
11
“Dickey asked why Bird would shoot the victim, rather than shoot defendant.
Defendant said Bird did not want to shoot the victim. Dickey asked why defendant did
not go back at some point to check on the victim. Defendant replied, ‘I didn’t care. I
didn’t wanna—I didn’t care whether she was—I was kinda mad.’ Dickey asked
defendant where to find the gun. Defendant said, ‘I don’t know where they put it but I
know where it’s at.’
“D. POLICE INVESTIGATION
“The gun was never recovered. Gunshot residue would not transfer from the
shooter’s hand to the steering wheel or door handle because gunshot residue is fragile. If
a gun is fired in a vehicle, the gunshot residue could move as a cloud and permeate
throughout the vehicle.
“E. DISSUADING OKORO
“After the incidents in this case occurred, Okoro was arrested and jailed for an
unrelated matter. Okoro was subpoenaed to testify in the preliminary hearing in
defendant’s case. In November 2018, Okoro was transported by bus from the jail in
Banning to the courthouse in Riverside. Defendant, who was also in custody, was on the
same bus as Okoro. Defendant said to Okoro, ‘ “I’m going to send someone to kill
you.” ’ Okoro feared for his life. Okoro testified at defendant’s preliminary hearing.
Upon returning to jail, Okoro was physically attacked. Okoro was then moved into
protective custody. Upon being released from jail, Okoro was scared to be at home, so he
moved to another city.
12
“F. DISSUADING C.R.
“C.R. dated defendant ‘[o]ff and on for about ten years,’ and they occasionally
lived together. C.R. had a son, A.R. A.R.’s age in 2017 is unclear from the record, but it
can be inferred that he was likely in his twenties. On April 7, 2017, at approximately
10:30 p.m., C.R., A.R., and defendant were at a convenience store.
“A.R. and defendant argued and stood ‘chest to chest.’ Defendant asked A.R. if
A.R. was scared and if he wanted defendant ‘to kick his ass.’ A.R. looked scared. C.R.
asked the store clerk to call the police. Defendant told C.R. ‘that he was gonna break her
of that habit and if she called the police, that he was going to kill her.’ C.R. told
defendant to leave A.R. alone.
“C.R. went to the Banning police station to report defendant’s threats. C.R. said
she feared defendant because, in the past, he physically and mentally abused her. C.R.
told the police that she feared defendant would kill her. Part of C.R.’s fear was caused by
her knowledge that defendant carried a handgun.” (People v. Stewart, supra, E074335
[3]-[12].)
DISCUSSION
After defendant appealed, and upon his request, this court appointed counsel to
represent him.
On August 28, 2023, appellate counsel filed a brief under People v. Wende (1979)
25 Cal.3d 436. In the brief, however, defense counsel also cited to People v. Delgadillo
(2022) 14 Cal.5th 216, when requesting this court to “independently review the record on
13
appeal when a no-issues brief is filed. (Wende, at pp. 441-442; cf. . . . Delgadillo[, at pp.]
226-231.”
On August 29, 2023, we sent an order to defendant, stating:
“Counsel for appellant has filed a brief stating no arguable issues can be found.
Because this is an appeal from the denial of a post-conviction proceeding, this court is not
required to conduct an independent review of the record but may do so in its discretion.
(People v. Delgadillo (2022) 14 Ca1.5th 216 . . . ; People v. Serrano (2012) 211
Ca1.App.4th 496.) The appellant is personally granted 30 days to file any supplemental
brief deemed necessary. If appellant files a supplemental brief, this court will evaluate
the specific arguments presented in that brief in its opinion. (Delgadillo, . . . at p. 165)
Failure to timely file a supplemental brief may result in the dismissal of the appeal as
abandoned.”
On October 16, 2023, we granted appellate counsel’s “unopposed application filed
September 5, 2023, for leave to file a supplemental appellant’s opening brief.”
On October 16, 2023, appellate counsel filed defendant’s supplemental opening
brief. In the brief, appellate counsel argued that since defendant’s appeal is “from the
new judgement,” it is “not a collateral attack on a final judgment and Delgadillo does not
apply,” and requested that “the Court independently review the record and determine for
itself whether any arguable issues require briefing.”
In defendant’s original brief, appellate counsel set forth a statement of the case and
a summary of the facts. As to a list of potential arguable issues, however, appellate
counsel provided: “[C]ounsel has carefully evaluated the record and has concluded such
14
a list would not be beneficial in this case. To assist the court in its review of the record,
counsel has written a thorough summary of the trial court proceedings.”
After appellate counsel filed a brief under People v. Wende, we offered defendant
an opportunity to file a personal supplemental brief, and he has not done so.
Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have
independently reviewed the record for potential error. We are satisfied that defendant’s
attorney has fully complied with the responsibilities of counsel and no arguable issue
exists. (Id. at p. 126; Wende, supra, 25 Cal.3d at pp. 441-442.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER Acting P. J.
We concur:
FIELDS J.
RAPHAEL J.
15
AI Brief
AI-generated · verify before citing
Holding. The court affirmed the trial court's resentencing decision, finding that the trial court properly exercised its discretion in declining to impose a lesser sentence after considering the aggravating factors of the case.
Issues
Whether the trial court abused its discretion in declining to impose a lesser sentence upon resentencing under Penal Code section 654.
Whether there are any arguable issues requiring further briefing following the filing of a Wende brief.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“The Court recognizes that I do have the discretion to impose a lesser sentence on [defendant], and I’ve thought about this case numerous times since it’s been returned to this department for review.”
“So this is a case in which the Court will not exercise discretion and will not lower the defendant’s sentence that was previously imposed on December 13th of 2019.”
“We are satisfied that defendant’s attorney has fully complied with the responsibilities of counsel and no arguable issue exists.”