Opinion
E072172
05-15-2020
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY ESPARZA CORTEZ, JR., Defendant and Appellant.
Christopher Allan Nalls, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Joy Utomi, Deputy Attorneys General, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SWF1302486) OPINION APPEAL from the Superior Court of Riverside County. Mac R. Fisher, Judge. Affirmed. Christopher Allan Nalls, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Joy Utomi, Deputy Attorneys General, for Plaintiff and Respondent.
I.
INTRODUCTION
Defendant and appellant, Anthony Esparza Cortez Jr. and his friend, Michael Saasvedra, together, fired a barrage of bullets into a house occupied by 10 people. Defendant was convicted of conspiracy to commit murder (count 1), being a felon in possession of a firearm (count 2), possessing firearms ammunition while prohibited from possessing a firearm (count 3), assault with a firearm (count 4), and possessing an assault weapon (count 5). (Pen. Code, §§ 182, 187, 245, subd. (a)(2), 1192.7, subd. (c)(8), 12022, subd. (a)(1), 12022.53, subd. (c), 29800, subd. (a)(1), 30305, subd. (a), 30605, subd. (a).) The court sentenced defendant to 29 years four months, plus an indeterminate term of 25 years to life.
Unless otherwise noted, all statutory references are to the Penal Code.
During a previous appeal in this case (People v. Cortez (2018) 24 Cal.App.5th 807, 810, review den. Oct. 10, 2018), this court affirmed the judgment of conviction but reversed defendant's sentence and remanded the matter to the trial court with instructions to "(1) strike the one-year section 12022, subdivision (a)(1), enhancement as to the assault with a firearm count (count 4); (2) stay under section 654 the one-year section 12022, subdivision (a)(1), enhancement as to the conspiracy count (count 1); (3) elect under section 654 to stay separate punishment either on count 2 or count 5; and (4) exercise its discretion under recently amended section 12022.53, subdivision (h), as to whether to strike defendant's section 12022.53, subdivision (c), firearm enhancement (count 1)." (Id. at pp. 823-824.)
During resentencing, the trial court sentenced defendant to 27 years eight months, plus an indeterminate term of 25 years to life. In the instant appeal, defendant contends remand is required because the trial court did not consider whether to impose on count 1 a lesser firearm enhancement than the section 12022.53, subdivision (c) enhancement. Defendant also contends he received ineffective assistance of counsel (IAC) because his attorney did not ask the trial court to strike his serious felony prior conviction enhancement under Senate Bill No. 1393 (2017-2018 Reg. Sess.), which was in effect at the time of resentencing.
We reject defendant's contentions and affirm the judgment.
II.
IMPOSING LESSER INCLUDED ENHANCEMENT
Defendant contends this court is required to remand this matter to allow the trial court to consider whether to impose a lesser firearm enhancement instead of imposing or striking the 20-year section 12022.53, subdivision (c) enhancement. Defendant asserts that the trial court did not understand the scope of its discretion, because the court erroneously thought it only had two options: striking the enhancement or reimposing it. Defendant argues the trial court also had discretion to reduce the enhancement to the uncharged, lesser included 10-year enhancement under section 12022.53, subdivision (b) or lesser included enhancement under section 12022.5, subdivision (a). We disagree.
After this matter was remanded to the trial court for resentencing, defendant filed a resentencing brief asserting that the trial court had discretion to strike his section 12022.53, subdivision (c) firearm enhancement. Defendant argued that, while his appeal was pending, Senate Bill No. 620 went into effect. Senate Bill No. 620 provides the trial court with discretion to strike a section 12022.53, subdivision (c) firearm enhancement. Defendant noted in his resentencing brief that the People opposed striking the enhancement because, after defendant was sentenced and incarcerated, he had been less than a model prisoner. He got into a fight with another inmate in prison. Defendant argued the incident should not be determinative of whether his enhancement was dismissed during resentencing. Defendant urged the court to dismiss the enhancement.
During resentencing on February 9, 2019, defense counsel noted that when defendant was originally sentenced, the law required the trial court to impose the section 12022.53, subdivision (c) enhancement. While defendant's appeal was pending, the law changed to provide the court with discretion to not impose the enhancement. Defense counsel further argued the enhancement should be dismissed or stayed because defendant had reformed, but had then been involved in a single instance of foolishly committing the charged crimes. The trial court responded that it would not exercise its discretion in favor of defendant. The court therefore denied defendant's request to strike his section 12022.53, subdivision (c) enhancement.
The People argue defendant forfeited his contention the trial court erred in not exercising its discretion to impose a lesser included enhancement to his section 12022.53, subdivision (c) enhancement. We agree. Under People v. Scott (1994) 9 Cal.4th 331, 353 and People v. Sperling (2017) 12 Cal.App.5th 1094, 1100, defendant's failure to object to the trial court limiting its discretion to either dismissing or reinstating the enhancement, forfeited defendant's objection to the trial court not considering imposing a lesser included enhancement. "'A party in a criminal case may not, on appeal, raise "claims involving the trial court's failure to properly make or articulate its discretionary sentencing choices" if the party did not object to the sentence at trial.'" (People v. Sperling, supra, at p. 1100.)
Section 12022.53, subdivision (h), as amended, became effective on January 1, 2018. Defendant was resentenced on February 8, 2019. Although defendant requested the court to strike his section 12022.53, subdivision (c) enhancement under the amended statute, he did not invite the trial court to impose a lesser included firearm enhancement as an alternative to dismissing or reinstating the enhancement. Defendant therefore forfeited his objection to the trial court not considering imposing a lesser included enhancement.
Furthermore, we conclude that, even assuming the objection was not forfeited, it is without merit. Sente Bill No. 620 amended sections 1385, 12022.5, and 12022.53 to allow the trial court to, "in the interest of justice pursuant to [s]ection 1385 . . . strike or dismiss an enhancement otherwise required to be imposed by" section 12022.5 or section 12022.53. (§§ 12022.5, subd. (c), 12022.53, subd. (h).)
Defendant urges this court to follow People v. Morrison (2019) 34 Cal.App.5th 217, and People v. Marsh (1984) 36 Cal.3d 134, and disregard People v. Tirado (2019) 38 Cal.App.5th 637, review granted Nov. 13, 2019, S257658. As we explained in People v. Yanez (2020) 44 Cal.App.5th 452, 457-460 [review granted Apr. 22, 2020], we decline to do so, and follow the analysis provided in Tirado.
In People v. Yanez, supra, 44 Cal.App.5th 452, we disagreed with the reasoning of People v. Morrison, supra, 34 Cal.App.5th 217, and concluded that section 12022.53, subdivision (h), as amended, does not afford the trial court any discretion to impose a lesser, uncharged firearm enhancement. (People v. Yanez, supra, at pp. 457-460.) Citing People v. Tirado, supra, 38 Cal.App.5th 637, we explained in Yanez that the statute did not contain any language suggesting the Legislature intended to grant such sentencing discretion. (People v. Yanez, supra, at pp. 458-460.) We further stated in Yanez that we declined "to adopt an interpretation of section 12022.53, subdivision (h) which would vest the trial court with discretionary power to essentially modify a charge brought by the prosecutor despite sufficient evidence to support such a charge." (Id. at p. 460.)
Because we disagree with the holding and analysis in People v. Morrison, supra, 34 Cal.App.5th 217, we decline to remand this case for resentencing to allow the trial court to exercise discretion to impose a lesser, uncharged enhancement. We conclude the trial court has no such discretion here, where there has been no showing that there was insufficient evidence to support defendant's section 12022.53, subdivision (c) firearm enhancement.
III.
IAC BASED ON FAILURE TO REQUEST
STRIKING DEFENDANT'S SERIOUS FELONY PRIOR
Defendant contends his attorney committed IAC during resentencing by failing to request the trial court to strike his serious felony prior conviction enhancement under section 667, subdivision (a)(1).
After this court issued its opinion on June 20, 2018, in defendant's first appeal, the Governor signed Senate Bill No. 1393 on September 30, 2018. Senate Bill No. 1393, amended sections 667 and 1385 to allow the trial court to exercise its discretion to strike a serious felony prior enhancement. The trial court therefore is no longer prohibited from striking prior serious felony convictions during defendant's resentencing.
Section 1385, subdivision (b), as amended, states: "If the court has the authority pursuant to subdivision (a) to strike or dismiss an enhancement, the court may instead strike the additional punishment for that enhancement in the furtherance of justice in compliance with subdivision (a)." Subdivision (a) states in relevant part that "[t]he judge or magistrate may, either of his or her own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed."
After Senate Bill No. 1393 took effect on January 1, 2018, defendant was resentenced on February 8, 2019. No mention was made during the resentencing hearing of striking defendant's serious felony prior. The defense's resentencing memo also did not request the court to strike the enhancement. As a consequence, the trial court reimposed the 5-year enhancement.
A. Applicable Law Regarding IAC
When we review an IAC claim, we apply a mixed standard of review. We defer to the trial court's factual findings if supported by substantial evidence, but we exercise de novo review over the ultimate issue of whether the defendant's constitutional rights were violated by IAC. (People v. Taylor (1984) 162 Cal.App.3d 720, 724-725.)
A criminal defendant's right to effective assistance of counsel is constitutionally guaranteed. (U.S. Const., 6th Amend.; Strickland v. Washington (1984) 466 U.S. 668, 684-685.) To establish a violation of that right, the defendant must show both that his counsel's performance fell below an objective standard of reasonableness under prevailing professional norms, and that the lapse was prejudicial. (Strickland v. Washington, supra, at pp. 687-688, 691-692.) "'The burden of sustaining a charge of inadequate or ineffective representation is upon the defendant. The proof . . . must be a demonstrable reality and not a speculative matter.'" (People v. Karis (1988) 46 Cal.3d 612, 656.) "'Unless a defendant establishes the contrary, we shall presume that "counsel's performance fell within the wide range of professional competence and that counsel's actions and inactions can be explained as a matter of sound trial strategy." [Citation.]'" (People v. Lopez (2008) 42 Cal.4th 960, 966, citing People v. Ledesma (2006) 39 Cal.4th 641, 745-746.)
B. Analysis
Defendant argues that a reasonable attorney would have requested the trial court to strike his serious felony prior conviction enhancement under amended section 1385, subdivision (b). Defendant speculates that during resentencing on February 8, 2019, his attorney was unaware that sections 1385 and 667 had recently been amended to allow the trial court to exercise its discretion to strike a serious felony prior enhancement. Defendant asserts there can be no satisfactory explanation for his attorney's failure to be informed of the current law and failure to request the court to strike his serious felony prior enhancement.
We disagree there was IAC. Nothing in the record shows that defense counsel was unaware of Senate Bill No. 1393 or the recent amendment of sections 1385 and 667. The fact that defense counsel did not mention the recent amended provisions or request the court to strike defendant's serious felony prior enhancement is insufficient to support such a speculative finding, particularly when there was reason for defense counsel not to request striking defendant's serious felony prior.
During the February 8, 2019, resentencing hearing, the trial court considered whether to exercise its discretion to strike defendant's section 12022.53, subdivision (c) firearm enhancement. Defense counsel noted that during the previous sentencing hearing, the trial court granted defendant's Romero motion. Defense counsel acknowledged, however, that after defendant's original sentencing, he got into a fight while incarcerated. Defense counsel argued that, nevertheless, the incident was an anomaly, which should be disregarded when considering whether to strike defendant's firearm enhancement. Defense counsel noted that, before defendant was incarcerated, he had fully reformed. He had a job earning about $35 an hour. Defense counsel asserted that when he committed the charged crimes, he made "the biggest mistake of his life," but he was already serving significant time for his convictions.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
The court responded that, although it previously granted defendant's Romero motion, the court would not similarly exercise its discretion in defendant's favor by ignoring his conduct during the period subsequent to the previous sentencing hearing. The court stated: "To the extent that I should ignore what's happened between then and now and excuse subsequent behavior as not being relevant to my determination as to whether or not to continue and, [once] again, exercise discretion in favor of Mr. Cortez, I can't do that. I just can't do that."
The court explained that "the reason I can't do that is—is that it matters how you conduct yourself even in prison. And in order to favor the discretion or the use of discretion, I—it almost makes me look at it in reverse, which is why I exercised discretion in the first place if, in fact, that's going to be the subsequent conduct thereafter. [¶] So they're apples and oranges in my mind. What my thought process was at the time of the striking of the strike pursuant to the Romero versus what has happened now at a later date in time, I indeed believe that it's based upon a different factual circumstance. And the factual circumstance is I don't believe that this discretion should be exercised right now. [¶] To that extent, I deny the opportunity to exercise that discretion to strike the firearm enhancement."
At this point in the sentencing hearing, defense counsel could have requested the trial court to strike defendant's serious felony prior conviction enhancement under amended section 1385, subdivision (b). Defense counsel's failure to do so does not constitute IAC because he could have reasonably concluded requesting the court to strike defendant's serious felony prior would have been futile. The trial court had just emphatically stated it would not exercise its discretion in defendant's favor because of his misconduct in prison. The court suggested that, in retrospect, granting defendant's Romero motion should also have been denied. Defense counsel could have reasonably concluded that it was a foregone conclusion that, as with the firearm enhancement, the trial court would not exercise its discretion favorably to defendant and strike his serious felony prior enhancement.
Under such circumstances, we conclude defense counsel's performance did not fall below an objective standard of reasonableness under prevailing professional norms. (Strickland v. Washington, supra, 466 U.S. at pp. 687-688, 691-692.) We also conclude there was no prejudice in defense counsel not requesting the court to strike his serious felony prior, because it is highly unlikely the court would have done so if asked. We therefore reject defendant's IAC challenge.
IV.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: RAMIREZ
P. J. MILLER
J.