Filed 10/7/26 P. v. Misu CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H053070
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. C2309819)
v.
STEFAN MISU,
Defendant and Appellant.
Defendant Stefan Misu appeals from a judgment entered after
conviction following a no contest plea. Appointed counsel for Misu filed a
brief asking this court to review the record to determine whether there are
any arguable issues. (See People v. Wende (1979) 25 Cal.3d 436 (Wende).)
Misu was advised of the right to file a supplemental brief but has not
responded. Finding no arguable error that would result in a disposition more
favorable to Misu, we affirm the judgment.
I. FACTS AND PROCEDURAL BACKGROUND1
E.S.,2 who was 18 years old, lived with her mother, father, and younger
brother in Anaheim. She was not employed and had been home schooled.
E.S. was born in Italy and had moved to the United States about 12 years
earlier.
On July 22, 2023, E.S. met up with Misu, with whom she was
romantically involved, around 8:00 or 9:00 p.m. at a 7-Eleven near her house
in Anaheim. E.S. had told her parents she was spending the night at a
friend’s house. She and Misu had known each other for five or six months.
Misu was 21 years old.
At the 7-Eleven, E.S. confronted Misu about infidelity. Misu told E.S.
that he was not going to cheat on her anymore. E.S. wanted to leave, but
Misu pulled her into the car, injuring her arm. Misu drove E.S. to San Jose.
E.S. and Misu spent the night at a hotel there. The following morning, E.S.
ran out of the hotel and went to a Chick-Fil-A restaurant. She was crying
and had no shoes on.
E.S. told a Chick-Fil-A employee, and later the police, that Misu had
kidnapped her. There was a large bruise on her arm. E.S. told the police
that the bruise was caused by Misu hitting her and forcing her into the car.
E.S. also told the police that she had screamed and cried at the 7-Eleven and
in the car “for hours” because she did not want to go with Misu. He had
threatened to rape her if she did not go with him to San Jose. Misu had
forced her to get in the car against her will, and she was terrified for her life.
1 The facts of Misu’s offenses, which we construe “ ‘in the light most
favorable to the judgment,’ ” (People v. Curl (2009) 46 Cal.4th 339, 342, fn. 3),
are principally taken from the evidence presented at his preliminary hearing.
2 We refer to the victim by her initials to protect her personal privacy
interests. (See Cal. Rules of Court, rule 8.90(b)(4).)
2
Misu had pulled off her pants at the hotel, threatened to rape her, and
pushed her on the bed. He did not rape her only because she agreed to marry
him. E.S. told the police that in her “country and culture” it is legal to try
and force a woman to have sex with them so that they will be forced to marry
them. E.S. testified that this was not true in her family, “but it happens all
over in Craiova and with the Gypsies.”
E.S.’s testimony at the preliminary hearing differed markedly from her
statements to the police on the day of the incident. E.S. testified at the
preliminary hearing that her assertion about Misu having kidnapped her was
a lie, which she had made because she was upset with Misu and jealous. She
stated she had voluntarily gone to San Jose with Misu. E.S. testified the
bruise on her arm was from a car door hitting her. She stated that Misu “was
going to take me to his uncle to confirm that I was going to marry him
because this is how it is, the custom, when it comes to Gypsies.” When asked
by the prosecutor to explain what she meant by this statement, E.S. stated,
“It’s a tradition. It’s a Gypsy tradition.” At the time of the preliminary
hearing, E.S. wanted to marry Misu.
The district attorney charged Misu by information with kidnapping
(Pen. Code,3 § 207, subd. (a); count 1); assault with intent to commit rape
(§ 220, subd. (a)(1); count 2); two counts of threats to commit a crime
resulting in death or great bodily injury (§ 422, subd. (a); counts 3 & 4); and
misdemeanor battery on a person with whom the defendant was in a dating
relationship (§ 243, subd. (e)(1); count 5). The information alleged, as to
counts 1 through 4, that Misu had “engaged in violent conduct that indicates
a serious danger to society.” (California Rules of Court, rule 4.421(b)(1) &
§ 1170, subd. (b).)
3 All further unspecified statutory references are to the Penal Code.
3
Misu, who is Romani, filed a motion pursuant to the Racial Justice Act
(RJA), alleging that a sergeant with the San Jose Police Department had
“exhibited implicit and explicit bias against Romanian [sic] individuals, in
violation of Penal Code section 745, subsection (a)(1)” in the course of the
investigation.4 The motion relied in part on statements by the sergeant made
on the day of the incident describing E.S. and Misu by the term “Gypsy.” The
motion stated that the sergeant said of Misu, “ ‘I don’t know what his real
name is. . . That’s the problem. When you, you have that Gypsy or
Romanian, like you don’t know because they always use different names.
Always. You don’t know.’ ”5
The trial court conducted an evidentiary hearing on Misu’s RJA motion
over four court days. Misu’s expert witness testified inter alia about the
history of discrimination against the Roma people and opined that the
investigating police officers exhibited implicit and explicit bias and racial
animus toward E.S. and Misu. The People moved to strike the testimony of
Misu’s expert witness, contending that it amounted to inadmissible evidence
about the state of mind of the San Jose police sergeant whose actions were
the principal subject of Misu’s RJA motion.
After the second court day and in response to further briefing by the
deputy district attorney, Misu filed a second RJA motion alleging that the
4 Misu’s expert witness at the evidentiary hearing on his RJA motion
testified that the term “Romani” is the adjective for the term “Roma.” The
Roma people speak the Romani language. The term “Gypsy” does not appear
in the Romani language but is used by others to refer to the Roma people.
Misu’s expert witness testified that “Gypsy” is a racial slur. He also testified
that the Roma sometimes use the term “Gypsy” to describe themselves, but
when a non-Roma uses the term, it is a racial slur.
5 At the evidentiary hearing on Misu’s RJA motion, the sergeant
testified that that the names Misu and E.S. had given the police on the day of
the incident did not appear in the databases used by the police.
4
deputy district attorney had violated the statute in statements made at the
evidentiary hearing and in briefing. Misu argued the deputy district attorney
violated the RJA by “othering” Misu and by defending racist assumptions.
The trial court ruled that Misu’s second RJA motion did not present a
prima facie basis and denied it. The court found that, while some statements
and arguments in the deputy district attorney’s opposition to Misu’s first RJA
motion demonstrated a misunderstanding of the statute, they did not
themselves amount to prima facie evidence of an RJA violation. The court
found that the deputy district attorney’s arguments did not demonstrate bias
against Misu or the Roma people but instead showed that the deputy district
attorney was “struggling through a new law and its application.”
As to Misu’s original RJA motion, the trial court denied the People’s
motion to strike the defense expert. The court found that the defense expert’s
testimony was admissible as to whether the police sergeant exhibited bias or
animus.
The trial court granted Misu’s RJA motion, ruling that Misu had met
his burden of showing an RJA violation. In particular, the court found that
the police sergeant who led the investigation had exhibited conscious and
unconscious bias through her statements and actions, particularly as to the
honesty of Romani individuals. The court also found that Misu had not
demonstrated that the sergeant harbored racial animus against Misu or the
Roma people.
As to remedy, Misu requested that the trial court dismiss the charges
or reduce them to misdemeanors. The court declined to impose either
remedy. The court noted that it considered its finding that the sergeant’s
conduct violated the RJA to be a “sanction of sorts” against her. The court
agreed that the RJA is a remedial statute, but it concluded it would not be
5
the interests of justice to dismiss the charges or reduce them to
misdemeanors. The court ruled that it would “strike the aggravators as to
each count as remediation” for the RJA violation.6 As a consequence of
striking the aggravators, Misu would no longer be eligible for an upper-term
sentence for any felony counts of conviction. (See § 1170, subd. (b); People v.
Lynch (2024) 16 Cal.5th 730, 742.)
Following the ruling on Misu’s RJA motion, the parties resolved the
case by written plea agreement. Misu pleaded no contest to counts 3 and 4
(both violations of section 422, subdivision (a)) and count 5 (a misdemeanor
violation of section 243, subdivision (e)(1).) Misu agreed that he would be
sentenced to two years in custody, and he would waive one year of custody
credits. Misu understood that counts 3 and 4 were both “strike” offenses.
The prosecution agreed to dismiss all remaining charges and allegations, and
that Misu would not be ordered to register pursuant to section 290. The
sentencing date would be continued so that Misu could serve a “paper
commitment,” in which he would serve his custodial time in the county jail.
At the change-of-plea hearing, the trial court clarified, “the parties had
negotiated in good faith a three-year top and bottom disposition. The
unintended consequence of the [c]ourt’s granting of a Racial Justice Act
motion and striking the aggravators means that there’s no lawful way to get
to three years in this case. [¶] . . . [¶] Thus, the parties [came] up with a
6 Misu subsequently filed in this court a petition for writ of mandate,
prohibition, or alternative relief requesting that this court “direct
[r]espondent [c]ourt to set aside its June 20, 2024 order striking aggravators
pursuant to the California Racial Justice Act . . . and instead impose a
meaningful remedy.” This court summarily denied the petition. (See Misu v.
Superior Court (Oct. 31, 2024, H052456).)
6
waiver of credits to effectuate the People’s actual offer of [three] years in
state prison.” The parties agreed with the court’s summary.
The trial court sentenced Misu on January 21, 2025. The court denied
probation and imposed a term of two years (the middle term) on count 2, a
term of two years on count 3, to be served concurrently with count 2, and 150
days on count 3, which it deemed served. The court awarded 367 days of
actual credit, 366 days of credit pursuant to section 4019, for total credits of
733 days. The trial court pronounced the sentence served, ordered Misu
released, and ordered Misu to report to parole upon his release from custody.
The court also issued a 10-year no contact order preventing Misu from having
any contact with E.S. It dismissed counts 1 and 2.
The trial court ordered a restitution fund fine of $1200 (§ 1202.4, subd.
(b)) and imposed and suspended a $1200 parole revocation restitution fund
fine (§ 1202.45). The court struck the court security fee and criminal
conviction assessment. The court waived the fines based on Misu’s inability
to pay.
Misu timely appealed. Misu requested a certificate of probable cause,
which was denied by the trial court.
II. DISCUSSION
We have reviewed the record under Wende, supra, 25 Cal.3d 436 and
People v. Kelly (2006) 40 Cal.4th 106. Having undertaken an examination of
the entire record, we find no arguable error that would result in a disposition
more favorable to Misu. We therefore affirm the judgment.
III. DISPOSITION
The judgment is affirmed.
7
______________________________________
Danner, Acting P. J.
WE CONCUR:
____________________________________
Bromberg, J.
____________________________________
Adams, J.
H053070
People v. Misu