Opinion
E074823
06-01-2020
THE PEOPLE, Plaintiff and Respondent, v. DAVID JOHN DELRIO, Defendant and Appellant.
David John Delrio, in pro. per.; Joshua L. Siegel, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIF1502001) OPINION APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge. Affirmed. David John Delrio, in pro. per.; Joshua L. Siegel, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
FACTUAL AND PROCEDURAL HISTORY
A. PROCEDURAL HISTORY
On December 10, 2015, an information charged defendant and appellant David John Delrio with four counts of forcible lewd acts on a child under age 14 under Penal Code section 288, subdivision (b)(1) (counts 1 through 4). The information also alleged that defendant "has been convicted in the present case and cases of committing a qualifying sex offense as specified in Penal Code section 667.61, subdivision (c), against more than one victim, within the meaning of Penal Code section 667.61, subdivision (e), subsection (4)."
A jury found defendant guilty of the offenses in counts 1 through 4, and found the multiple victim allegation true. (People v. Delrio (Oct. 6, 2017, E066391 [nonpub. opn.] 2.) The trial court sentenced defendant to consecutive indeterminate terms of 25 years to life in all four counts, for a total of 100 years to life. (Ibid.)
In our unpublished opinion, we concluded that the 25-years-to-life sentences in counts 3 and 4 were unauthorized, and that the applicable sentences for those two counts were 15 years to life. We reversed the sentences in counts 3 and 4 and remanded the case for resentencing. In all other respects, we affirmed the judgment. (People v. Delrio supra, at pp. 3-5.)
On December 19, 2017, the trial court resentenced defendant to consecutive indeterminate terms of 15 years to life in counts 3 and 4, for a total sentence of 80 years to life.
On January 30, 2020, defendant filed a petition for resentencing under Penal Code section 1170.95
The trial court appointed counsel for defendant and held a hearing on his petition on February 14, 2020. At the hearing, the People moved to dismiss the petition on the grounds that defendant was ineligible for relief because he had not been convicted of murder. The trial court summarily denied defendant's petition.
On February 20, 2020, defendant filed a timely notice of appeal from the denial of his petition.
B. FACTUAL HISTORY
The facts are taken from our unpublished opinion from defendant's prior appeal:
"Defendant was J.G.'s grandfather. Defendant started sexually assaulting J.G. in 2014, when she was eight years old and in the second grade. Defendant repeatedly entered J.G.'s room at night while she was sleeping and touched her all over, including her vagina, bottom and chest. Once, defendant also partially inserted his penis inside her bottom. When J.G. resisted, defendant grabbed her and pulled her hair. He also threatened to kill J.G. with a knife he always carried. J.G. recalled that, during the first sexual assault, defendant told her, 'If you get up, I'm gonna kill you and I'll let your blood come out and you'll be crying to death.'
"Defendant was S.G.'s step-grandfather. Defendant started sexually assaulting S.G. between February 1, 2007, and December 31, 2008; S.G. was around seven or eight years old and in the third grade. On one occasion, over S.G.'s objections and with an express threat to kill her, defendant put his hands under S.G.'s underwear and touched her vagina. Defendant touched her vagina at least one more time and when S.G. asked him to stop, he told S.G. to shut up. S.G. hit defendant with a toy; he flinched but 'he was still continuing to do what he was doing.' Another time, again over S.G.'s protests, defendant touched her over her clothing, including her bottom."
DISCUSSION
After defendant appealed, and upon his request, this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 setting forth a statement of the case, a summary of the facts, and potential arguable issues, and requesting this court to undertake a review of the entire record. Pursuant to Anders, counsel identified the following issue to assist the court in its search of the record for error: "Whether the trial court erred by summarily denying appellant's petition without first allowing the parties the opportunity to file additional briefing on appellant's petition in accordance with [Penal Code] section 1170.95, subdivision (c) ['The prosecutor shall file and serve a response within 60 days of service of the petition and the petitioner may file and serve a reply within 30 days after the prosecutor response is served.']."
We offered defendant an opportunity to file a personal supplemental brief. On April 9, 2020, defendant filed a two-page handwritten supplemental brief with attachments. In his brief, defendant essentially challenges the basis of his convictions, not the denial of his petition under Penal Code section 1170.95. Defendant claims that his counsel failed to render effective assistance of counsel during his trial because his counsel should have "file(d) an order for appointment of an expert and [] presented [the expert] to testify during jury trial but [it never happened][;]" (2) his charges should have been "exonerated by DNA evidence[;]" and (3) there was prosecutorial misconduct during his jury trial. We, however, already addressed challenges to defendant's convictions in the first appeal. We cannot revisit these challenges on an appeal from a denial of defendant's Penal Code section 1170.95 petition.
Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the record for potential error, and find no arguable issue for reversal on appeal.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J. We concur: RAMIREZ
P. J. McKINSTER
J.