Fear Not Law CA Unpub Decisions

P. v. Simons CA4/2

Filed 10/1/26 P. v. Simons CA4/2
CA Unpub Decisions

Filed 10/1/26 P. v. Simons 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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, E085848

v. (Super.Ct.No. RIF10000110)

JUSTIN ANTHONY SIMONS, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of Riverside County. Randall S. Stamen,

Judge. Affirmed.

Steven A. Torres, under appointment by the Court of Appeal, for Defendant and

Appellant.

Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney

General, Arlene A. Sevidal, Assistant Attorney General, Eric A. Swenson and Marvin E.

Mizell, Deputy Attorneys General, for Plaintiff and Respondent.

1
Defendant and appellant Justin Anthony Simons appeals from the trial court’s

denial of his motion made pursuant to Penal Code section 1170.91,1 arguing that the

court erred when it found him not credible. We find no error and affirm.

FACTUAL AND PROCEDURAL HISTORY2

In January 2010, defendant telephoned the victim, but the victim hung up on him,

which defendant viewed as an act of disrespect. (Simons-1 at p. 1.) Defendant

“responded by going to [the victim’s] house with two accomplices and, among other

criminal acts, pistol whipped [the victim] and his housemate, stole numerous items, and

threatened to kill the residents if they called the police.” (Ibid.) The victims included the

housemate’s three-year-old son. (Id. at p. 9.)

A jury convicted defendant of first degree robbery (§ 211), attempted robbery

(§ 664, 211), three counts of assault with a firearm (§ 245, subd. (a)(2)), making criminal

threats (§ 422), and negligent discharge of a firearm (§ 246.3). The jury also found true

three firearm enhancements (§ 12022, subd. (a)(1)). Defendant admitted to a prior

serious offense conviction and a prior strike. (Simons-1 at p. 1.)

1 All further statutory references are to the Penal Code unless otherwise indicated.

2 We have derived portions of our factual and procedural history from defendant’s
direct appeal, People v. Simons (July 23, 2013, E054984) [nonpub. opn.] (Simons-1).

2
On December 9, 2022, defendant, while in pro. per., filed a petition for

resentencing pursuant to section 1170.91, subdivision (b), alleging that he had served in

the U.S. Army from 2007 to 2009, that as a result of his military service he may be

suffering from post-traumatic stress disorder (PTSD) and substance abuse, and that when

he was sentenced the court did not consider his health conditions resulting from his

military service as a factor in deciding the sentence. Defendant filed an identical petition

on January 10, 2023, although it is unclear in the record why he refiled.

The parties stipulated to the trial court first determining the issue of whether

defendant was “ ‘a member of the United States military’ ” for the purposes of section

1170.91. The People contended that defendant did not qualify because he had only

completed basic combat training (BCT) for the Army Reserves and had never served in

active duty. In a written decision filed July 31, 2024, the trial court ruled that defendant

became a “ ‘member of the United States military’ ” when he took his oath of enlistment.

On January 24 and February 21, 2025, the trial court held an evidentiary hearing

on the remaining issue of whether defendant was eligible for relief pursuant to section

1170.91. Defendant testified that he attended BCT for the U.S. Army Reserve when he

was 17 years old, that during BCT he fell from the top of the rope climbing wall and lost

consciousness, that he suffered a severe head injury and had several broken bones, that he

believed he suffered PTSD as a result, and began using marijuana and alcohol to dull the

pain.

3
On March 28, 2025, the trial court issued a written ruling denying defendant’s

motion. The trial court found that defendant was not credible, specifying that it had “paid

particular attention to: the fact that [defendant] was unable to remember and describe the

circumstances of his alleged fall from a rope wall, resulting medical care, and subsequent

military career in any significant detail; [defendant’s] behavior while testifying; that in

the past, [defendant] made statements which are inconsistent with his allegations and

testimony; that [defendant’s] allegations and testimony are unreasonable when the Court

considers all the other evidence in this case; evidence disproved the allegations and

testimony of [defendant]; [defendant’s] character for truthfulness; [defendant] has been

convicted of a felony; and, [defendant] engaged in significant conduct that reflects on his

believability.”

The trial court’s ruling also identified the following in support of its credibility

finding: defendant’s military form DD 220 did not indicate that defendant suffered any

injury or received any medical treatment during his military service; in his interview with

law enforcement upon his arrest in 2010, defendant claimed he was discharged from the

Army as a result of a shoulder injury sustained when he rolled a Humvee while off duty;

defendant claimed in his Romero3 motion filed in 2011 that he was discharged from the

Army because he had not earned his high school diploma, and made no mention of

sustaining an injury during BCT; the statements made by defendant’s father at the 2011

3 A trial court may strike a defendant’s prior convictions for a serious or violent
felony that would otherwise qualify as a strike under the “Three Strikes” law. (People v.
Superior Court (Romero) (1996) 13 Cal.4th 497, 529–531.)

4
sentencing hearing about defendant attending BCT made no mention of defendant being

injured; defendant stated in his Romero motion that he began experimenting with

marijuana at age 10 and alcohol at age 13; and defendant’s prison health care records did

not support his claims as no expert testified about his claimed health conditions and it

appeared from the medical records that defendant began receiving treatment very close in

time to his December 2022 filing of his petition, at which point he had been incarcerated

for more than a decade.

DISCUSSION

Section 1170.91, subdivision (b)(1), provides that “A person currently serving a

sentence for a felony conviction, whether by trial or plea, who is, or was, a member of the

United States military and who may be suffering from sexual trauma, traumatic brain

injury, post-traumatic stress disorder, substance abuse, or mental health problems as a

result of the person’s military service may petition for a recall of sentence, before the trial

court that entered the judgment of conviction in the case, to request resentencing if the

circumstance of suffering from sexual trauma, traumatic brain injury, post-traumatic

stress disorder, substance abuse, or mental health problems as a result of the person’s

military service was not considered as a factor in mitigation at the time of sentencing.”

This court previously observed that “[t]he statute merely requires a petitioner to

allege that he or she ‘may be suffering from’ a qualifying condition. (§ 1170.91, subd.

(b)(1).) It does not require a petitioner to allege evidentiary facts, such as the symptoms

or manifestations of the qualifying condition.” (People v. Coleman (2021) 65

Cal.App.5th 817, 822.)

5
The parties agree that we are to review the trial court’s ruling on a section 1170.91

motion under the abuse of discretion standard. A court abuses its discretion where it is

exercised in an arbitrary and capricious manner. (People v. Sandoval (2007) 41 Cal.4th

825, 847, superseded by statute on other grounds as stated in People v. Lynch (2024) 16

Cal.5th 730, 757.) It is also an abuse of discretion where the factual findings critical to

the trial court’s decision are not supported by the evidence. (People v. Lewis (2024) 101

Cal.App.5th 401, 409.)

Defendant points to no potential legal errors made by the trial court. (Cf. People

v. Hayde (2025) 113 Cal.App.5th 587, 597, 600 [trial court erred in denying relief to a

“prime candidate for resentencing” based on erroneously requiring a showing of a nexus

between the defendant’s mental disorders and his criminal conduct].) Defendant also

does not identify any evidence in the record suggesting that the trial court exercised its

discretion in an arbitrary or capricious manner.

In this instance, the trial court did not find defendant credible with respect to his

claim to be suffering from traumatic brain injury, PTSD, or substance abuse as a result of

his military service. A defendant’s lack of credibility is an appropriate basis for denial of

an 1170.91 petition. (See People v. Coleman, supra, 65 Cal.App.5th at p. 823 [reversal

of trial court’s denial of 1170.91 petition “because it ruled that the allegations were

insufficient, not because it found them not credible”].)

We ordinarily will not disturb on appeal the credibility findings made by the trier

of fact. “ ‘The power to judge the credibility of witnesses and to resolve conflicts in the

testimony is vested in the trial court....’ [Citation.] ‘It is an established principle that the

6
credibility of witnesses and the weight to be given their testimony are matters within the

sole province of the trier of fact...’ [Citation.] …[T]he testimony of a witness which has

been rejected by the trier of fact cannot be credited on appeal unless, in view of the whole

record, it is clear, positive, and of such a nature that it cannot rationally be disbelieved.’ ”

(People v. Hamlin (2009) 170 Cal.App.4th 1412, 1463-1464.)

We found nothing in the record—and defendant has not identified any part of the

record—suggesting that the trial court’s adverse credibility finding was erroneous.

Instead, defendant effectively reargues his same position made at the trial level and

restates his testimony. “We reject defendant’s attempt to reargue the evidence on appeal

and reiterate that ‘it is not a proper appellate function to reassess the credibility of the

witnesses.’ ” (People v. Thompson (2010) 49 Cal.4th 79, 125.)

Defendant also offers excuses in his briefing for the inconsistences in his

testimony as compared to the rest of the record, including speculating that his

inconsistent statements during his 2010 police interview “could have simply been

bravado or embarrassment, or not thinking it was worth mentioning.” We will not

engage with these new factual claims and speculation that are unsupported by the record.

What the record does reflect is ample support for the trial court’s findings, including the

various contradictions in defendant’s testimony that the trial court identified in its written

ruling such as defendant’s prior inconsistent statements to law enforcement and in

previous court filings.

7
DISPOSITION

The trial court’s orders are affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER
J.

We concur:

RAMIREZ
P. J.

CODRINGTON
J.

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