Wife stabber’s appeal on resentencing abandoned
Duane Magee, who appealed after his 1170.95 petition for resentencing was denied, has abandoned his appeal by not filing a supplemental brief, an unpublished July 11 appellate ruling says.
A recent change to state law established that people cannot be convicted of murder unless they directly murder someone. A 1170.95 petition allows people convicted of murders due to their tangential involvement in the crime to have their murder sentence vacated. The trial court, and the Court of Appeal, established the law does not apply to Magee because he directly murdered his wife.
The unpublished July 11 opinion said Magee, who called 9-1-1 to his house on Greystone Road in San Bernardino, admitted he killed his wife, Velda.
“I just killed my wife,” he said, according to the unpublished appellate ruling. “I killed her with a knife,” “She was cheatin’ on me and I killed her,” “I stabbed her all over,” he said. He also told police officers and medical personnel he stabbed her. “Crime of passion,” and “I’m guilty all the way,” Magee told police.
Before the stabbing, Velda’s daughter claimed Velda was poisoning Magee, causing seizures. Velda wanted a divorce and a restraining order against Magee, according to a neighbor.
Magee was convicted of second degree murder, and was sentenced to 15 years to life plus one year.
San Bernardino Superior Judge Harold Wilson presided.
San Bernardino Superior Court case number FSB1203948.
Appellate case number E077903.
Nancy J. King, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for the people.
Associate Justice Carol Codrington wrote the opinion, joined by Associate Justice Marsha Slough and Associate Justice Michael Raphael.
Read the opinion here.
CA Supreme Court precedent gives discretion to reduce sentence in two IE murder cases
The California Supreme Court, after ruling in People v. Tirado Jan. 20 that trial courts have the discretion to reduce firearm enhancements, sent two murder cases back to Riverside and San Bernardino superior courts for possible resentencing. After review by trial courts, these sentences may stay the same, or be reduced.
Killer of ex’s fiance partially appeal on firearm enhancement
Michael O’Brien, sentenced to 75 years to life after being convicted of murdering his ex-girlfriend’s fiance, may receive a shorter sentence. His other claims on appeal were rejected in a July 8 unpublished ruling.
O’Brien was convicted July 25, 2019, of first degree murder, with enhancements for a prior felony and for using a firearm. He received 25 years for each conviction.
Desseray Mariscal, who had a son with O’Brien and was engaged to Rudy Areyan, complained to O’Brien March 16, 2019 that Areyan was following her in his car after an argument at a laundromat. O’Brien told Mariscal to drive to his location, so that he would deal with it. When both Mariscal and Areyan arrived, O’Brien shot Areyan in the head. Mariscal drove O’Brien away.
He argued on appeal that the conviction lacked evidence, the trial court provided two inappropriate jury instructions, and that San Bernardino Superior Court should review the case to decide if he should receive a lesser firearm enhancement.
The appellate court remanded the case back to the trial court to determine O’Brien’s firearm enhancement term.
“At the time of sentencing, it was unclear whether the trial court had discretion to impose either sentence in lieu of striking the enhancement or imposing a greater, charged firearm-use enhancement. Tirado confirms that the trial courts do have that discretion,” the court ruled.
On O’Brien’s other claims, the Court of Appeal ruled that there was substantial evidence for the murder. The court also ruled that the trial court’s use of the flight instruction, in which the judge instructs the jury that a defendant’s flight from the crime scene might show awareness of guilt, was appropriate. The court also ruled that the trial court’s instruction to the jury on CALCRIM 521 was appropriate. That instruction says the jury needed to agree only on whether O’Brien committed the murder, and did not need to agree whether the murder was first degree because of murder by premeditation, or murder by lying in wait.
Case information
Jean Ballantine, under appointment by the Court of Appeal, represented O’Brien.
Attorney General Xavier Becerra, Chief Assistant Attorney General Lance E. Winters, Assistant Attorney General Julie L. Garland, and Deputy Attorneys General Daniel Rogers, Adrianne S. Denault and Christopher P. Beesley for plaintiff and respondent
San Bernardino Superior Judge Ingrid Uhler presided.
San Bernardino Superior Court case number FWV19001320.
Appellate case number E074516.
Read the ruling here.
Homeless camp murder victim “Put out of misery”
Riverside Superior Court will reconsider the firearm enhancement of a homeless man who claimed he shot a man, already dead, to put him out of his misery, the Court of Appeal ruled.
The July 8 unpublished appellate ruling laid out the facts: Richard Valles began fighting with Michael Carmona in a homeless camp along the Santa Ana River in Riverside in June, 2016.
The July 8 unpublished appellate ruling laid out the facts: Richard Valles began fighting with Michael Carmona in a homeless camp along the Santa Ana River in Riverside in June, 2016. Carmona had kicked Valles’ girlfriend’s dog, then pushed Valles’ girlfriend down. Valles and Carmona wrestled for 15 minutes, until Valles felt he was about to have a seizure, and left the camp. His tentmate, Jesus Renteria, attacked Carmona with a knife. Valles heard people say Carmona was dead. When he returned, he shot Carmona in the head, claiming to put him out of his misery. He later said the brain can still feel pain, even after death. Valles buried Carmona 25 feet away from his tent. The pathologist ruled Carmona could have died from either a knife wound to the lung, a knife wound to the chest, or the bullet.
A jury convicted Valles of first-degree murder, with a firearm enhancement, and Valles was sentenced to 25 years to life for the murder, and 25 years to life for the gun enhancement. Riverside Superior Court may reduce the gun enhancement.
Case information
Jean Ballantine, under appointment by the Court of Appeal, for defendant and appellant.
Attorney General Xavier Becerra, Chief Assistant Attorney General Gerald A. Engler, Assistant Attorney General Julie L. Garland, and Deputy Attorneys General Warren J. Williams, Paige B. Hazard and Steven T. Oetting for plaintiff and respondent.
Riverside Superior Court case number RIF1603061.
Appellate case number E071361.
Read the ruling here.
Riverside Superior may resentence attempted murderer due to change in law
Assemblymember Buffy Wicks’ (D-Berkeley) AB 518 changed the Penal Code Oct. 1. Previously, an act that is punishable by different provisions of law would be punished by the provision with the greatest sentence. Under the new law, a court would have the ability to decide which provision they punish convicts with.
In this case, Jose Quiroz was convicted of both conspiracy to commit murder and attempted murder.
Quiroz and four other defendants were involved with shooting at a car with the intent to kill someone in it March 28, 2016. The injured victim had taken one of their cellphones.
Quiroz was sentenced Oct. 23, 2017, and received 25 years to life. He received 25 years to life for conspiracy to commit murder, life with a minimum parole eligibility after seven years for attempted murder and four years for burglary, run consecutively to the attempted murder sentence. His sentence for conspiracy to commit murder was stayed.
The Court of Appeal directed Riverside Superior Court to decide whether Quiroz should be resentenced for the conspiracy charge or the attempted murder charge.
Riverside Superior Judge Bernard Schwartz presided.
Alan S. Yockelson, under appointment by the Court of Appeal, represented the defendant and appellant.
Attorney General Rob Bonta, Chief Assistant Attorney General Lance E. Winters, Acting Assistant Attorney General Daniel Rogers, and Deputy Attorneys General Eric A. Swenson and Felicity Senoski represented the plaintiff and respondent.
Riverside Superior Court case number RIF1601573.
Appellate case number E077442.Read the ruling here.
