Opinion
B294041
04-03-2020
THE PEOPLE, Plaintiff and Respondent, v. SERGIO ESCAMILLA, Defendant and Appellant.
Rudolph J. Alejo, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Acting Assistant Attorney General, Scott A. Taryle and Michael Katz, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. BA450616) APPEAL from a judgment of the Superior Court of Los Angeles County, Craig J. Mitchell, Judge. Affirmed with directions. Rudolph J. Alejo, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Acting Assistant Attorney General, Scott A. Taryle and Michael Katz, Deputy Attorneys General, for Plaintiff and Respondent.
____________________
A jury convicted defendant and appellant Sergio Escamilla (Escamilla) of carjacking (Pen. Code, § 215, subd. (a)), possession for sale of heroin (Health & Saf. Code, § 11351), and possession for sale of methamphetamine (id., § 11378). The jury found true an allegation that during the carjacking, Escamilla personally used a firearm (§ 12022.53, subd. (b)). The trial court sentenced Escamilla to a total term of 16 years in state prison.
Undesignated statutory citations are to the Penal Code.
On appeal, Escamilla contends: (1) the trial court violated his due process rights when it instructed the jury, pursuant to CALCRIM No. 315, to consider an eyewitness's level of certainty; (2) his attorney was ineffective for failing to request mental health diversion; and (3) pursuant to People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), the trial court erred in failing to hold an ability-to-pay hearing prior to imposing fines and fees.
Escamilla further contends, and the Attorney General agrees, that in light of Senate Bill Nos. 620 and 136, the matter must be remanded to allow the trial court to exercise its discretion strike the firearm enhancement imposed under section 12022.53, and to strike the one year prior prison term enhancement imposed under section 667.5, subdivision (b).
We affirm the judgment of conviction, but remand to allow the trial court to exercise its discretion with respect to imposition of the firearm enhancement and to strike the prior prison term enhancement. In all other respects, the judgment is affirmed.
FACTS AND PROCEEDINGS BELOW
A. Prosecution Evidence
In the early morning hours of September 27, 2016, Oscar S. came home and parked his BMW on the street. A black four-door sedan pulled up behind him. Oscar S. shut off the engine, and tried to get out of his car, but was unable to do so because the door was being blocked from the outside.
A man, later identified as Escamilla, pointed a gun at Oscar S., and asked where he was from. Oscar S. replied, "[N]owhere." Escamilla ordered Oscar S. to get out of the car, but leave his keys and cell phone. As he got out of the car, Oscar S. felt the metal barrel of the gun press into his back. Escamilla got in Oscar S.'s car and turned on the engine. Oscar S. then saw a passenger in the black sedan jump into the driver's seat and proceed to drive off "really slowly" in order to, what appeared to Oscar S. "make sure the [BMW] got away."
Oscar S. called 911. When police arrived, Oscar S. told them his cell phone number and part of his license plate number. The police used a "find my phone" internet program that showed that the cell phone was in the vicinity of 102nd Street and Larch Avenue in Inglewood. Police drove there and spotted Oscar S.'s BMW blocking the driveway of a residence. As police knocked on the door of the house, they were alerted that two young men had entered a residence two houses away. Police proceeded to the second residence and, after speaking to an older male, were directed to a back house where they ordered the occupants out of the house. Three men complied and emerged from the house. One of the men was accomplice (and former codefendant) John Sanchez.
Officer Quintero, who approached door of the first house, testified that another police unit assigned to keep watch over the BMW alerted her to the two young Hispanic males who entered the residence two houses east of their location. Quintero did not state whether these males were seen exiting the BMW, but subsequently testified she and her partner went to door-knock on the second residence to see if they could make contact "with possible suspects or the people that were seen exiting the vehicle."
Sanchez was initially charged as a codefendant in this case, but pleaded no contest to a carjacking charge prior to trial. The other two males who emerged from the back house were transported to the station, but later released.
Meanwhile, another officer spotted two additional men running from the house. One of the men was Escamilla, who was chased by an officer until the officer lost sight of him. A K-9 team with search dogs subsequently found Escamilla hiding in the backyard of a residence a block from where the officer lost sight of him. Escamilla was then arrested and taken into police custody.
The other man who fled from the back house, Edwin Navarro, was apprehended within minutes after flight; Navarro had an outstanding warrant for an unrelated crime.
Later that day, Oscar S. identified John Sanchez in a one-man in-field show up. The police showed Oscar S. two other men before they presented Sanchez. Oscar S. told police that Sanchez was the man who drove away the car that pulled behind Oscar S.'s car at the crime scene. Oscar S. also identified Sanchez's photo at trial as the same man.
The day after the carjacking, Oscar S. identified Escamilla in a six-pack photo line-up. Oscar S. wrote on the lineup documents that Escamilla "looks like the one that stole my car and pointed a gun at me but had tattoos on both sides of his neck." Escamilla had neck tattoos. Oscar S. also identified Escamilla at trial as the carjacker.
Escamilla was not available for a field-show up the previous day because he was being treated at the hospital for a dog bite from the K-9 unit.
Police found a black Ford Focus sedan parked across the street from the back house in Inglewood where Escamilla and the other males were found. The police discovered the vehicle was rented by Escamilla's mother who had provided the rental car company with the same home address Escamilla gave to police when he was booked and arrested for the instant offense. The home address was in Venice, not Inglewood. The parties stipulated that Escamilla's DNA was consistent with DNA found in that rental car.
Around the time police were chasing Escamilla, P.M. saw a man standing by the bed of the family pick-up truck. P.M. and her husband later found a backpack containing drugs in the bed of the truck. The backpack was a red and blue "Louis Stewart" bag with the word "Paris" written across the front; it contained individual bindles of methamphetamine and heroin.
P.M. could not tell if Escamilla was the man standing near her husband's truck. The prosecutor, however, introduced a photograph of Escamilla wearing the same backpack on a prior occasion.
B. Defense Evidence
Escamilla did not present any testimony. The defense rested without calling any witnesses.
C. Charges and Jury Verdict
Escamilla was charged with carjacking (§ 215, subd. (a)), possession for sale of heroin (Health & Saf. Code, § 11351), and possession for sale of methamphetamine (id., § 11378), with allegations that he personally used a firearm during the carjacking (§ 12022.53, subd. (b)). The information further alleged that Escamilla served two prior prison terms (§ 667.5, subd. (b)).
On May 10, 2017, the jury convicted Escamilla of all charges and found true the firearm-use allegation. Escamilla admitted one of the prior prison term allegations.
On September 12, 2018, the trial court sentenced Escamilla to a total term of 16 years in state prison: the five-year mid term for the carjacking, plus 10 years for the firearm-use allegation, plus one year for the prior-prison-term allegation. The trial court additionally imposed a low term sentence of two years on the heroin-related count and the mid term of two years on the methamphetamine-related count, and ordered the sentences on those two counts to run concurrent to the sentence for the carjacking offense.
Although the state originally alleged two prison priors, the prosecutor indicated at sentencing that there was, in fact, only one such prior.
The trial court also imposed a $300 restitution fine (§ 1202.4), a $120 court operations assessment (§ 1465.8), and a $90 conviction assessment (Gov. Code, § 70373).
DISCUSSION
I. CALCRIM No. 315
The trial court instructed the jury pursuant to CALCRIM No. 315, the standard Judicial Council instruction regarding eyewitness identification. The instruction directs the jury to consider a number of factors in evaluating eyewitness testimony, including the witness's level of certainty. Escamilla argues that the inclusion of this factor violates due process due to empirical studies that show witness certainty has weak correlation with accuracy. The Attorney General counters the issue is forfeited by Escamilla's failure to seek modification of the instruction at trial, the claim must be rejected under binding precedent issued by the California Supreme Court, and that any purported error was harmless in any event. We agree with the Attorney General on all three points.
CALCRIM No. 315 reads in relevant part: "You have heard eyewitness testimony identifying the defendant. As with any other witness, you must decide whether an eyewitness gave truthful and accurate testimony. [¶] In evaluating identification testimony, consider the following questions: [¶] . . . [¶] How certain was the witness when he or she made an identification?"
A. Relevant law
1. People v. Sánchez
The predecessor instruction to CALCRIM No. 315 is CALJIC No. 2.92, which tells the jury to consider any factor that "bear[s] upon the accuracy of the witness' identification of the defendant, including, . . . [¶] . . . [¶] [t]he extent to which the witness is either certain or uncertain of the identification." At the time of trial in this case, the California Supreme Court had upheld the inclusion of the certainty factor in CALJIC No. 2.92 on at least three occasions. (People v. Sánchez (2016) 63 Cal.4th 411, 461-463 (Sánchez); People v. Johnson (1992) 3 Cal.4th 1183, 1231-1232; see People v. Wright (1988) 45 Cal.3d 1126, 1144 (Wright)].)
In the most recent of these cases, Sánchez, the court acknowledged that "some courts have disapproved instructing on the certainty factor in light of the scientific studies." (Sánchez, supra, 63 Cal.4th at p. 462.) The court nevertheless declined to reexamine its previous holdings, explaining there were a number of identifications in the case, some certain and some uncertain, and therefore it was "not clear that even those [out-of-state] cases would prohibit telling the jury it may consider this factor" as the defendant "would surely want the jury to consider how uncertain some of the identifications were." (Ibid.) The court also determined the instructional claim was forfeited for lack of objection, and the inclusion of the certainty factor resulted in no harm to defendant. (Id. at pp. 461-463.)
In a concurring opinion, Justice Liu agreed the claim was forfeited and any error was harmless, but urged the high court to reexamine the propriety of the instruction: "In light of developments in scientific research and recent case law, there is a substantial question whether it is proper for trial courts to instruct that witness certainty is a factor bearing on the accuracy of an identification that juries should consider." (Sánchez, supra, 63 Cal.4th at pp. 495, 498 (conc. opn. of Liu, J.).)
2. People v. Lemcke
In 2018, the court granted review in People v. Lemcke (Oct. 10, 2018, S250108), to consider whether including the certainty language in the instruction violates a defendant's due process rights. In its grant of review, the high court framed the issue as follows: "Does instructing a jury with CALCRIM No. 315 that an eyewitness's level of certainty can be considered when evaluating the reliability of the identification violate a defendant's due process rights?"
Unless and until the Supreme Court overrules its prior precedent, we remain bound by it. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 ["Under the doctrine of stare decisis, all tribunals exercising inferior jurisdiction are required to follow decisions of courts exercising superior jurisdiction"].) In any event, Escamilla is not entitled to relief for the additional reasons stated below.
B. Escamilla is not entitled to relief
1. The claim is forfeited
Escamilla interposed no objection to the instruction below, and the trial court was under no obligation to either give or modify CALCRIM No. 315 on its own motion. (See People v. Cook (2006) 39 Cal.4th 566, 599 [no sua sponte duty to give standard instruction on eyewitness identification]; People v. Ward (2005) 36 Cal.4th 186, 213 [no sua sponte duty to modify the standard instruction on eyewitness identification].) Thus, like the defendant in Sánchez, Escamilla forfeited any objection to the court's instruction. (See Sánchez, supra, 63 Cal.4th at p. 461 ["If defendant had wanted the court to modify the [certainty] instruction, he should have requested it. The trial court has no sua sponte duty to do so"].)
Escamilla insists the claim is not forfeited because any objection would have been futile. In support of this assertion, however, Escamilla cites cases discussing the futility doctrine in contexts other than jury instruction challenges. Conversely, Sánchez expressly and specifically deemed forfeited a claim of error based on the trial court's failure to sua sponte omit the certainty factor in the standard eyewitness instruction—and relied on cases concluding the same. (See Sánchez, supra, 63 Cal.4th at p. 461, citing Ward, supra, 36 Cal.4th at p. 213 and People v. Sullivan (2007) 151 Cal.App.4th 524, 561.)
Escamilla cites People v. Rangel (2016) 62 Cal.4th 1192, 1215 [confrontation clause challenge to admissibility of statements not waived because objection would have been futile under existing law]; People v. Gomez (2018) 6 Cal.5th 243, 286-287 [challenge to admissibility of statements (by trial judge) regarding defendant's late arrival not waived where court rulings on other grounds asserted by counsel indicated any further objections would be futile]; People v. Welch (1993) 5 Cal.4th 228, 237 [declining to apply new rule requiring timely objection at sentencing hearing to challenge reasonableness of probation condition where case broke new ground on appeal].)
Escamilla has forfeited any challenge to CALCRIM No. 315.
2. Any purported error was harmless in any event
Even assuming the wording of the instruction on witness certainty was erroneous, any such error was harmless. (See Sánchez, supra, 63 Cal.4th at p. 463; Wright, supra, 45 Cal.3d at p. 1144 [analyzing instructional error under the Watson standard].)
To the extent Escamilla contends the error amounts to federal constitutional error because it lowers the prosecution's burden of proof and infringes on a defendant's right to present a meaningful defense, we disagree. The instruction does not deny a defendant the opportunity to challenge the accuracy of the victim's identification, but tells the jury that certainty is one of many factors to consider in evaluating identification testimony. (Sánchez, supra, 63 Cal.4th at p. 462.) The instruction also does not reduce the prosecution's burden of proof—it instead explicitly reminds the jury the prosecution has the burden of proving its case beyond a reasonable doubt. (CALCRIM No. 315 ["The People have the burden of proving beyond a reasonable doubt that it was the defendant who committed the crime. If the People have not met this burden, you must find the defendant not guilty"].)
The victim Oscar S. not only identified Escamilla from a six-pack photo line-up, but also independently (and correctly) described Escamilla as having tattoos around his neck—though none of the line-up photos revealed whether such tattoos were present. Oscar S. further recognized that Escamilla's face appeared fuller in the line-up photo than his present-day appearance—an observation corroborated by the testimony of a detective at trial without objection. Oscar S. also identified Escamilla's accomplice, John Sanchez, during a field-show up though Oscar S. was shown two other males. Finally, a black sedan recovered by police at the location of Oscar S.'s recovered BMW—and linked to the carjacking—was rented by Escamilla's mother and contained Escamilla's own DNA.
Escamilla argues the error cannot be deemed harmless because the prosecutor expressly relied on the "certainty" factor during his closing argument by pointing out that the victim Oscar S. was "unequivocal" in his identification. Defense counsel, however, did not dispute the accuracy of Oscar S.'s identification of Escamilla, but instead argued the prosecutor had failed to establish beyond a reasonable doubt that Oscar S.'s car was taken in his immediate presence, and that a gun was used during the offense.
In arguing that Oscar S. was mistaken in believing that the carjacker had a gun in his hand, defense counsel stated the fact that Oscar S. described tattoos on the suspect's neck meant Oscar S. was not focused on the item in the suspect's hands.
Indeed, while counsel cross-examined victim Oscar S. about general lighting conditions and his ability to view the suspects during the carjacking, defense counsel virtually conceded the issue of identity during closing argument, telling the jury, "Mr. Escamilla is not sophisticated. Allegedly he goes and commits this offense. And even though he's got a hoodie on, he doesn't put anything over his head. He doesn't put anything over his face. He's got tattoos on his neck. He uses his mom's car. This is not a sophisticated criminal."
Thus, in rebuttal, the prosecutor stated "the defense seems to be saying, and I agree with [defense counsel] on this, this is not a who-done-it case. This is not a question of whether or not Mr. Escamilla was the person there at [Oscar S.'s] door."
In any event, while it is true that the prosecutor observed that Oscar S. did not equivocate in his identification of Escamilla, Oscar S. himself did not testify that he was "certain" or confident of his identification. Moreover, the prosecutor discussed additional factors listed in CALCRIM No. 315, including the witness's ability to perceive and remember his behavior while testifying, and his lack of bias, prejudice, motive to fabricate, or prior inconsistent statement.
In light of this record, it is not reasonably probable Escamilla would have obtained a more favorable result by omission of the certainty factor from CALCRIM No. 315. (Sánchez, supra, 63 Cal.4th at p. 463; Wright, supra, 45 Cal.3d at pp. 1144-1145 [concluding any error in failing to give defense requested instruction on eyewitness factors was harmless in light of, inter alia, the overall strength of the evidence and the fact that factors relating to the reliability of the eyewitness identifications were brought to the jury's attention by cross-examination and arguments of counsel].)
II. Ineffective Assistance of Counsel
Two months prior to Escamilla's sentencing, then-Governor Jerry Brown signed into law Assembly Bill No. 1810 which added section 1001.36—providing diversions for defendants with mental illness. (Stats. 2018, ch. 34, §§ 24, 37.) Escamilla claims his attorney was ineffective for failing to move for diversion under section 1001.36, noting counsel referenced Escamilla's mental health issues in a new trial motion and thus "could have [had] no reasonable tactical justification for failing to move for diversion at or prior to sentencing." The Attorney General disagrees, arguing pretrial diversion, by definition, is only available to those who have not yet had their cases adjudicated and that the record is insufficiently developed for appellate relief on the claim. Because we agree with the Attorney General's second argument, we need not address the first.
Following the verdicts delivered on May 10, 2017, Escamilla fired his public defender and hired private counsel to represent him for postconviction motions and sentencing. Sentencing took place on September 12, 2019. Assembly Bill No. 1810 took effect June 27, 2018. (Stats. 2018, ch. 34, §§ 24, 37.)
A. Relevant facts
The trial record reflects Escamilla remained free on bail before and during most of the trial. On May 5, 2017, the defense rested and Escamilla waived jury trial on the prior conviction allegations. At the next scheduled court appearance, on May 8, 2017, Escamilla failed to appear in court and the trial court issued a warrant for his arrest and continued trial to the following day. The next day, Escamilla reappeared in court and proceedings resumed.
After the jury retired to begin its deliberations, the court increased bail from the previously set amount of $195,000 to $260,000. In objecting to the increase trial counsel stated the following: "I just would like to put in some information that I've spoken to his parents, who are present in court, and who have been present during the duration of this trial, and they have indicated to me that, as well as my client, that he, basically, suffered a panic attack, and that is his reason for not showing up. [¶] He was sick, basically, and ill, because he was suffering from this panic attack and the possible consequences that might arise from this trial, and that is his explanation for not being here."
The trial court denied the request to keep the bail set at the lower amount.
In a new trial motion filed on August 1, 2018, defense counsel blamed Escamilla's trial attorney for failing to "inquire[ ] further as to Mr. Escamilla's mental health." In a single paragraph statement, counsel asserted these issues were "well-documented"—noting that Escamilla had absented himself from one day during the trial after suffering a panic attack, and that he had threatened to kill himself prior to his arrest. Counsel further stated, without evidentiary support, that Escamilla was currently "being housed in the mental health wing at the . . . County Jail." Counsel did not assert any legal basis upon which trial counsel should have raised any mental health issues purportedly suffered by Escamilla, but simply asked for a new trial on grounds that Escamilla had been absent from trial due to mental illness.
In support of this assertion, counsel relied on the trial testimony of an officer who participated in apprehending Escamilla, and stated: "I could hear one—I could hear a male voice at one point goes—basically telling us, hey, don't come any closer, I'm gonna kill myself."
B. Relevant legal principles
1. Ineffective assistance of counsel—Review on direct appeal
To establish ineffective assistance of counsel, a defendant must show first, that his attorney's performance was deficient, and second, that those errors prejudiced him. (Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).) On appeal, there is a strong presumption that counsel's conduct falls within the wide range of adequate professional assistance. (People v. Stanley (2006) 39 Cal.4th 913, 954.) Thus, "[i]t is particularly difficult to prevail on an appellate claim of ineffective assistance. (People v. Mai (2013) 57 Cal.4th 986, 1009 (Mai).)
"On direct appeal, a conviction will be reversed for ineffective assistance only if (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation. All other claims of ineffective assistance are more appropriately resolved in a habeas corpus proceeding." (Mai, supra, 57 Cal.4th at p. 1009); see also People v. Michaels (2002) 28 Cal.4th 486, 526 ["We have repeatedly emphasized that a claim of ineffective assistance is more appropriately decided in a habeas corpus proceeding"].)
2. Assembly Bill No. 1810/Section 1001.36
Section 1001.36 authorizes trial courts to grant certain eligible defendants pretrial diversion into mental health treatment programs in lieu of criminal prosecution. A trial court may grant pretrial diversion under section 1001.36 if the court finds: (1) the defendant suffers from an identified mental disorder, with a recent diagnosis by a qualified mental health expert; (2) the mental disorder was a significant factor in the commission of the charged offense; (3) the defendant's symptoms will respond to treatment; (4) the defendant consents to diversion and waives his or her speedy trial rights; (5) the defendant agrees to comply with the treatment; and (6) the defendant will not pose an unreasonable risk of danger to public safety if treated in the community. (§ 1001.36, subd. (b).)
Section 1001.36 was passed by the Legislature as part of a health care budget bill—(Assemb. Bill No. 1810 (2017-2018 Reg. Sess.))—and took immediate effect on June 27, 2018. (Stats. 2018, ch. 34, §§ 24, 37.) Three months later, the statute was amended by Senate Bill No. 215 (2017-2018 Reg. Sess.) to, among other things, prohibit mental health diversion in cases involving certain crimes. (§ 1001.36, subd. (b)(2)(A)-(H); Stats. 2018, ch. 1005, § 1.) The amendment took effect on January 1, 2019. (See Cal. Const., art. IV, § 8, subd. (c)(1).) Escamilla's crimes are not on the prohibited list.
Our Supreme Court is currently reviewing whether section 1001.36 applies retroactively to persons whose crimes were adjudicated before the statute took effect, but as to whom judgment is not yet final—a matter on which the Courts of Appeal have reached different conclusions. (Compare People v. Frahs (2018) 27 Cal.App.5th 784, 791 [statute applies retroactively], review granted Dec. 27, 2018, S252220 (Frahs); People v. Burns (2019) 38 Cal.App.5th 776, 785-788 [same], review granted Oct. 30, 2019, S257738, with People v. Torres (2019) 39 Cal.App.5th 849, 855-856 [statute does not apply retroactively]; People v. Craine (2019) 35 Cal.App.5th 744, 754-760 [same], review granted Sept. 11, 2019, S256671(Craine).)
Craine, filed after the grant of review in Frahs, rejected the reasoning of Frahs and concluded that section 1001.36 does not apply retroactively where the charges against the defendant have already been "adjudicated" within the meaning of the statute. (Craine, supra, 35 Cal.App.5th at pp. 754-760.) Craine noted its interpretation was consistent with the legislative history behind section 1001.36 wherein the Legislature specifically envisioned a mental health program to reduce the number of incompetent-to-stand-trial referrals to state hospitals and to remedy problems associated with the inability of trial courts to intervene " 'at an early stage in the proceedings' " and order mental health treatment before conviction and sentence. (Id. at p. 758, italics omitted.)
The Frahs court denied a request for judicial notice of the legislative history of Assembly Bill No. 1810, deeming the material unnecessary for resolution of the issue. (Frahs, supra, 27 Cal.App.5th at p. 789.)
We need not weigh in on the issue, however, because Escamilla has solely presented the issue on appeal as an ineffective assistance of counsel claim and, as so framed, cannot satisfy the requisite criteria for reversal on appeal. (See People v. Woodruff (2018) 5 Cal.5th 697, 737 [explaining that because claim was presented as one of ineffective assistance of counsel, "relief depend[ed] solely" on whether defendant could satisfy constitutional criteria associated with such claims]; People v. Alfaro (2007) 41 Cal.4th 1277, 1304 [same]; People v. Webster (1991) 54 Cal.3d 411, 437 [same].)
C. The record is insufficiently developed to grant Escamilla relief on his ineffective assistance of counsel claim on direct appeal
1. Trial court's order re: settlement of record
In his opening brief before this court, Escamilla additionally relies on testimony elicited during a post-appeal record settlement hearing regarding an unreported side bar that occurred during the sentencing proceedings. This court granted Escamilla's request for permission to settle the record based on an application in which Escamilla sought to determine whether (1) defense counsel ever moved for the court to strike the firearm allegation under Senate Bill No. 620, and (2) whether the court actually denied any such motion. (See Argument III., post.)
After the hearing, the trial court issued the following order on Escamilla's application: "At the sidebar, defense counsel asked the Court to impose as low a sentence as possible by striking anything it could. Defense counsel, however, does not recall whether he ever specifically mentioned the section 12022.53 enhancement or the new discretion afforded by recently-enacted Senate Bill No. 620. [¶] The Court told the parties at sidebar that a lengthy sentence was appropriate given that Mr. Escamilla was found to have pressed the barrel of a gun against the victim's upper body."
During the settlement hearing, appellate counsel also elicited testimony from defense counsel that after Escamilla's new trial motion was denied—and the court proceeded to sentencing—Escamilla became "very agitated" and "riled up." Defense counsel requested the side bar to create a "break," and during the side-bar, mentioned to the court that Escamilla "was having a difficult time" and that "there [w]ere mental health issues with him." Counsel then "asked the court if the court would use any and all discretion that it has to limit the amount of time."
Escamilla himself testified at the settlement hearing that he did not hear anything discussed during the sidebar conference. Appellate counsel, however, asked Escamilla whether he had any mental health issues, to which he responded, "I have had depression, and I have anxiety and P.T.S.D."
2. Even assuming the testimony identified by Escamilla from the record settlement hearing is properly before this court, he is not entitled to relief in this appeal
In light of Escamilla's reliance on testimony adduced at the record settlement hearing, we must first point out that the sole purpose of the hearing was to determine what was discussed during the sidebar conference. (People v. Hawthorne (1992) 4 Cal.4th 43, 65-66 [explaining procedures and noting, in context of record settlement statement that trial judge has " 'full power over the record' "].) As such, any facts developed beyond the four corners of the sidebar are not properly before this court. (Lona v. Citibank, N.A. (2011) 202 Cal.App.4th 89, 102 ["Factual matters that are not part of the appellate record will not be considered on appeal and such matters should not be referred to in the briefs"]; People v. Waidla (2000) 22 Cal.4th 690, 703, fn. 1 [explaining that on appeal, this court's review is " 'limited to the four corners of the [underlying] record' "].)
Here, there was never any dispute over whether defense counsel moved the court for mental health diversion under section 1001.36.
Even assuming, however, that all of the testimony identified by Escamilla is properly before this court, there remains no indication Escamilla was ever diagnosed, let alone treated, for any mental health issues. (§ 1001.36, subd. (b).) A pretrial probation report prepared on December 16, 2016 (and detailing Escamilla's criminal history) states there exists "no information to indicate there is any significant physical, mental, or emotional health problems." (Capitalization omitted.) Thus, contrary to Escamilla's assertions that his "struggles with mental illness" were " 'well documented,' " what the trial record actually establishes is that (1) in September of 2016, when facing imminent capture and arrest, Escamilla threatened suicide, and (2) in May of 2017, when facing an imminent jury verdict and potential conviction, Escamilla absconded from trial.
In his reply brief, Escamilla nevertheless maintains reversal is required since mental health diversion is "far more preferable to sixteen years in state prison" and thus counsel had nothing to lose by seeking diversion. He further states that he is not arguing this court "must" reverse his conviction, but rather that because the record indicates that he "may" qualify for diversion, this court should grant a conditional reversal to allow him the opportunity to make that request. In making these arguments, Escamilla ignores two established rules with regard to ineffective assistance of counsel claims.
The first is that to prevail on the prejudice prong, Escamilla must "affirmatively prove[ ]" prejudice, meaning he must demonstrate not merely a possibility that he would have qualified for diversion, but " '[a] reasonable probability.' " (People v. Maury (2003) 30 Cal.4th 342, 389, italics added.) In asserting that he is entitled to a remand on the mere chance that he "may" qualify for diversion, Escamilla fails to appreciate this important legal distinction. (People v. Berryman (1993) 6 Cal.4th 1048, 1081, fn. 10 [deeming language from older cases suggesting that prejudice for purposes of ineffective assistance of counsel claims may be shown by a mere "reasonable possibility" as "no longer vital"], disapproved on another point in People v. Hill (1998) 17 Cal.4th 800, 822-823.)
Second, if the record is insufficient for this court to determine that there could be no " 'conceivable reason' " for counsel's inaction, an ineffective assistance of counsel claim must be rejected on appeal. (People v. Nguyen (2015) 61 Cal.4th 1015, 1051, italics added; People v. Cunningham (2001) 25 Cal.4th 926, 1003 [stating that a defendant who raises ineffective assistance of counsel on direct appeal "must establish deficient performance based upon the four corners of the record"].) The natural corollary to this rule is that any further factual development necessary for the claim must proceed by way of a habeas petition. (People v. Snow (2003) 30 Cal.4th 43, 122 [expansion of factual record to establish ineffective assistance of counsel claim must be presented via habeas corpus petition].)
By requesting a "conditional" remand with regard to his ineffective assistance of counsel claim to allow him to present and develop the evidence, Escamilla is effectively seeking to circumvent these principles and blur the distinct line between direct and collateral review. Because granting Escamilla's request for a "conditional" reversal would undermine an extensive body of law regarding the appropriateness of appellate review for ineffective assistance of counsel claims, we deny the request. (Michaels, supra, 28 Cal.4th at p. 526; Cunningham, supra, 25 Cal.4th at p. 1003.)
III. Senate Bill No. 620
The jury found true the firearm enhancement allegation, and Escamilla's sentence includes a consecutive term of 10 years under section 12022.53, subdivision (b). Senate Bill No. 620, effective January 1, 2018 (Stats. 2018, ch. 682, § 1), amended section 12022.53, subdivision (h) to remove the prohibition on striking a firearm enhancement; the amendment applies retroactively to nonfinal judgments. (People v. Chavez (2018) 22 Cal.App.5th 663, 711-713 ["amended section 12022.53, subdivision (h) applies to all nonfinal judgments"].)
Escamilla contends that although Senate Bill No. 620 was enacted before his sentencing, the trial court did not know it had discretion to strike or retain the firearm enhancement and the matter should therefore be remanded to allow the trial court to exercise that discretion. The Attorney General agrees, noting "the record suggests there is a reasonable probability that the trial court did not know about that discretion." We agree with the parties.
Generally, absent evidence to the contrary, a reviewing court will presume that the trial court " ' "knows and applies the correct statutory and case law." ' " (People v. Jones (2017) 3 Cal.5th 583, 616 (Jones).) Here, at the outset of sentencing, the trial stated its discretion was limited to the term on count 1, explaining "there is only a little bit of latitude that the court has with respect to imposing sentence, and that is, essentially, whether it imposes five years or nine years for the primary offense. Defense counsel did not correct the court, but asked the court to impose the low term on count 1 and to stay the one-year enhancement. The trial court denied both requests, but determined that the mid term of five years was appropriate with respect to count 1. The trial court then added a 10-year term for the firearm enhancement and a one-year term for the prison prior enhancement to reach an aggregate prison sentence of 16 years.
Pursuant to section 215, subdivision (b) a trial court may sentence a defendant to 3, 5, or 9 years. (§ 215, subd. (b).)
As noted earlier, see Argument II., ante, the trial court subsequently settled the record by determining that although defense counsel could not recall whether he mentioned Senate Bill No. 620 to the court during a sidebar conference, counsel did ask the court to impose as low a sentence as possible by striking anything it could. In light of our disposition (and the Attorney General's concession), we need not consider whether counsel was ineffective for failing to expressly point out Senate Bill No. 620 in requesting the court's leniency.
In light of this record, we agree the trial court was likely unaware of its discretion under Senate Bill No. 620. (Cf. Jones, supra, 3 Cal.5th at p. 616; People v. McDaniels (2018) 22 Cal.App.5th 420, 425 [" 'Defendants are entitled to "sentencing decisions made in the exercise of the 'informed discretion' of the sentencing court," and a court that is unaware of its discretionary authority cannot exercise its informed discretion' "].) Moreover, given that the trial court imposed the mid term on the primary count and ran the (mid term and low term) sentences on the drug counts concurrent to the carjacking count, a remand for an exercise of discretion under Senate Bill No. 620 would not be futile in this case. (People v. Almanza (2018) 24 Cal.App.5th 1104, 1110 ["[r]emand is required unless the record reveals a clear indication that the trial court would not have reduced the sentence even if at the time of sentencing it had the discretion to do so"]; People v. McDaniels, at p. 425 [same].)
Accordingly, we remand the matter to allow the trial court to exercise its discretion as to whether to strike or impose the firearm enhancements in accordance with section 12022.53, subdivision (h).
In his Senate Bill No. 20 briefing argument, Escamilla notes that the trial court at one point mischaracterized the trial testimony by stating Oscar S. testified the gun was pressed into his neck—when he actually testified it was pressed into his mid-back. While the trial court made these comments in ruling on a separate issue raised in the new trial motion, Escamilla is free to address any facts relevant to the trial court's exercise of discretion under Senate Bill No. 620 on remand. (See People v. Rocha (2019) 32 Cal.App.5th 352, 359-360 [discussing procedural rights of defendants on remand for exercise of sentencing discretion].)
IV. Senate Bill No. 136
At sentencing, Escamilla admitted he served a prison term for a prior conviction. The information alleged the prior conviction was a felony suffered pursuant to section 273.5, felony child neglect. Escamilla's 16-year sentence includes one year for that prison prior.
In a supplemental letter brief, Escamilla contends the one-year prior prison term enhancement imposed pursuant to section 667.5, subdivision (b), must be stricken under the amendment provided in Senate Bill No. 136, effective January 1, 2020. The Attorney General agrees, and so do we.
On October 8, 2019, Senate Bill No. 136 was signed into law and became effective on January 1, 2020. (Stats. 2019, ch. 590, § 1.) The legislation modified section 667.5, subdivision (b) to eliminate one-year sentences for prior prison terms served unless the prior prison term involves a conviction of a sexually violent offense (which is not at issue here). The statute is retroactive and applies to cases not yet final as of its effective date. (People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 303, 308; In re Estrada (1965) 63 Cal.2d 740.)
Accordingly, we hereby order the trial court to comply with Senate Bill No. 136 and strike defendant's prison prior sentence enhancement. V. Court assessments, fines, and fees
Citing Dueñas, supra, 30 Cal.App.5th 1157, Escamilla contends that the trial court violated his due process rights by imposing the $210 in assessments and the $300 restitution fine without first determining his ability to pay these amounts. The Attorney General states that in light of the necessary remand for the trial court's exercise of sentencing discretion on the firearm enhancement, this court should also remand the matter to allow Escamilla to request a hearing and present evidence demonstrating his inability to pay the fines and fees. We disagree.
We first conclude that Escamilla's reliance on Dueñas is misplaced. Following People v. Hicks (2019) 40 Cal.App.5th 320, review granted November 26, 2019, S258946, this court has held that Dueñas was wrongly decided because it misapplied due process precedents. (People v. Kingston (2019) 41 Cal.App.5th 272, 279-282 [holding that, contrary to analysis in Dueñas, due process precludes a court from imposing fines and assessments only if to do so would deny the defendant access to the courts or directly result in incarceration. Second, where a prison term affords sufficient time to pay the fines through prison earnings, courts considering Dueñas have found a failure to conduct an ability to pay hearing harmless (People v. Jones (2019) 36 Cal.App.5th 1028, 1035 [noting that even assuming defendant earned only the minimum $12 a month, he would have earned $720 after five years, which is more than sufficient to pay fines and fees imposed]; People v. Aviles (2019) 39 Cal.App.5th 1055, 1075-1077 [any Dueñas error harmless due to defendant's ability to earn prison wages equaling amount of fine and assessments].) Here, even assuming the trial court strikes the firearm enhancement (and strikes the one-year prison prior), Escamilla is still facing a five-year prison term—sufficient to pay off a total of $510 in fines and fees. (People v. Aviles, at pp. 1075-1077.)
In his opening brief, Escamilla puts forth the alternative argument that his challenge to the restitution fine should be analyzed under the Excessive Fines Clause of the Eighth Amendment to the United States Constitution, citing People v. Kopp (2019) 38 Cal.App.5th 47, review granted November 13, 2019, S257844 (Kopp). The Attorney General advocates remanding this issue to the trial court given that it has to resentence Escamilla based on Escamilla's challenges to the firearms and prior prison enhancements discussed above.
We conclude that such a remand is unnecessary. We may review de novo whether a fine is excessive under the Eighth Amendment. (United States v. Bajakajian (1998) 524 U.S. 321, 336, fn. 10 (Bajakajian); People v. Aviles, supra, 39 Cal.App.5th at p. 1072. The Eighth Amendment prohibits the imposition of excessive fines. The determination of whether a fine is excessive for purposes of the Eighth Amendment is based on the factors set forth in Bajakajian, supra, 524 U.S. 321. (People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2005) 37 Cal.4th 707, 728].)
"The touchstone of the constitutional inquiry under the Excessive Fines Clause is the principle of proportionality: The amount of the forfeiture must bear some relationship to the gravity of the offense that it is designed to punish. [Citations.] . . . [A] punitive forfeiture violates the Excessive Fines Clause if it is grossly disproportional to the gravity of a defendant's offense." (Bajakajian, supra, 524 U.S. at p. 334.)
The California Supreme Court has summarized the following factors in Bajakajian to determine if a fine is excessive in violation of the Eighth Amendment: "(1) the defendant's culpability; (2) the relationship between the harm and the penalty; (3) the penalties imposed in similar statutes; and (4) the defendant's ability to pay." (People ex rel. Lockyer v. R.J. Reynolds Tobacco Co., supra, 37 Cal.4th at p. 728).) Although the ability to pay may be part of the proportionality analysis, it is not the only factor. (Bajakajian, supra, 524 U.S. at pp. 337-338.)
Here, the trial court found Escamilla guilty of all charges, including the use of a firearm. Thus, the penalty is not disproportionate to the harm. Escamilla is still facing a five-year prison term—sufficient to pay off a total of $510 in fines and fees. The fine in this instance is appropriate and not excessive. Simply because the matter is being remanded for the trial court to determine sentencing enhancements should not require the trial court to be burdened with conducting an ability to pay hearing for a fine which is relatively de minimus and not disproportionate to Escamilla's crimes.
DISPOSITION
The matter is remanded to allow the trial court to exercise its discretion in determining whether to strike the firearm enhancement under Senate Bill No. 620 and to strike the one-year prison prior enhancements under Senate Bill No. 136. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
JOHNSON, Acting P. J.
BENDIX, J.