Opinion
B294339
08-12-2020
THE PEOPLE, Plaintiff and Respondent, v. FERNANDO ESPARZA, Defendant and Appellant.
Kelly C. Martin, 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, Senior Assistant Attorney General, Steven D. Matthews and Ryan M. Smith, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. PA090291) APPEAL from a judgment of the Superior Court of Los Angeles County, Hayden Zacky, Judge. Affirmed. Kelly C. Martin, 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, Senior Assistant Attorney General, Steven D. Matthews and Ryan M. Smith, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
Defendant Fernando Esparza appeals from a judgment of conviction following a jury trial. Defendant was convicted of three counts of attempted murder that was willful, deliberate, and premeditated. (Pen. Code, §§ 664 and 187, subd. (a).) The trial court sentenced defendant to 21 years to life in state prison.
Further statutory references are to the Penal Code unless otherwise noted.
Defendant contends the trial court erred by instructing the jury with CALCRIM No. 601 because that instruction improperly permitted the jury to convict defendant of attempted premeditated murder without finding he had the required mental state of premeditation. Defendant also argues the court erred during sentencing by not considering a social history report. We affirm.
II. BACKGROUND
"We view the evidence in a light most favorable to the judgment." (People v. Gaut (2002) 95 Cal.App.4th 1425, 1427.)
A. The Attempted Murder
Anna Borst was a Pacoima Flats gang member. Two weeks prior to the shooting at issue in this case, Borst accused fellow Pacoima Flats gang members Christopher Meza, Rafael Nuno, and Pedro Nuno, of raping her. Borst is defendant's aunt.
Anna Borst's true name is Anna Hernandez. Because she was identified as Anna Borst at trial, we will refer to her as "Borst."
Meza, Rafael, and Pedro were known by their gang names of Peanut, Gauge, and Spooky. Because Rafael and Pedro share the same last name, we will refer to them by their first names for clarity.
On February 25, 2014, several Pacoima Flats gang members, including Borst, Meza, Rafael, and Pedro, gathered at the backyard of Pacoima Flats gang member Beatriz Rendon's house on Hoyt Street, to discuss Borst's allegations. Following the discussion, gang members concluded that Borst had lied about the rape and needed to be disciplined.
During that discussion, Borst texted and telephoned defendant, who was with his friend Hector Valdez. Defendant and Valdez were Pacoima Van Nuys Boys gang members. Borst told defendant that she was in trouble with some Pacoima Flats gang members who were at a house on Hoyt Street. Valdez and defendant then spoke on the telephone with another person; they talked "about some guns."
Defendant telephoned his friend Jorge Canas and asked Canas if he "wanted to go" with defendant, Valdez, and a third person, known as Casper, who was later identified as Luis Elias. Canas declined.
Defendant, Valdez, and Elias then drove Valdez's car, a Blue Honda Accord, to Hoyt Street.
Meanwhile, Meza, Rafael, and Pedro left Rendon's backyard on Hoyt Street, and went toward Meza's car. Before Meza could start his car, defendant, Valdez, and Elias came out of a house and someone shot numerous times at Meza, Rafael, and Pedro. Pedro returned fire, striking Valdez in the back.
A witness at trial testified there was a single shooter, who was, in turn, shot as he ran away. This testimony indicated that Valdez was the person who shot at Meza, Rafael, and Pedro.
Defendant drove away in the blue Honda Accord to a Kaiser Permanente Hospital in Panorama City. After dropping off Valdez and Elias, defendant left the hospital and drove to Canas's house. Valdez died at the hospital from his gunshot wound. Several days later, defendant burned the Honda Accord. B. Procedural History
On February 22, 2018, the Los Angeles County District Attorney charged defendant by information, alleging in count 1, the murder of Valdez, in violation of section 187, subdivision (a); in counts 2, 3, and 4, the attempted premeditated murders of Pedro, Rafael, and Meza, in violation of sections 664 and 187, subdivision (a); and in count 5, the shooting at an occupied motor vehicle, in violation of section 246. The information further alleged as enhancements for counts 1 through 4, that a principal personally and intentionally discharged a handgun, which proximately caused great bodily injury and death (§ 12022.53, subds. (d) and (e)(1)); and that a principal personally and intentionally discharged a handgun (§ 12022.53, subds. (c) and (e)(1)) and personally used a handgun (§ 12022.53, subds. (b) and (e)(1)). The information also alleged that defendant committed counts 1 through 5 for the benefit of a criminal street gang. (§ 186.22, subd. (b)(5).)
On May 14, 2018, a jury found defendant not guilty of counts 1 and 5 and guilty of attempted murder as alleged in counts 2, 3, and 4. The jury found true the allegation that the attempted murders were willful, premeditated, and deliberate. The jury found untrue the allegations that defendant personally and intentionally discharged and used a handgun. (§ 12022.53, subds. (b) and (c).) The jury also found the gang allegations to be untrue.
The jury also found true that a principal personally and intentionally discharged a handgun and used a handgun pursuant to section 12022.53, subdivisions (b), (c), and (e)(1). The trial court, however, concluded that such true findings were incompatible with the jury's finding that the attempted premeditated murders were not for the benefit of a criminal street gang. (See People v. Brookfield (2009) 47 Cal.4th 583, 590 [explaining interaction between §§ 186.22, subd. (b) and 12022.53, subd. (e)(1)].) Therefore, at sentencing, the court did not impose the firearm enhancements.
At sentencing, the trial court imposed a life sentence for each count with a minimum parole date of seven years (see § 3046, subd. (a)(1)), to be served consecutively, for a total sentence of 21 years to life.
III. DISCUSSION
A. The Trial Court's Failure to Instruct on Premeditation and Deliberation
Defendant contends the trial court erred in instructing the jury with CALCRIM No. 601, which permitted the jury to find that he committed attempted murder willfully, with premeditation and deliberation, by finding that either he or Valdez had the necessary mental state. According to defendant, the court was required to instruct the jury that it had to find that defendant acted with willfulness, premeditation, and deliberation.
The trial court instructed the jury with CALCRIM No. 601 as follows: "If you find the defendant guilty of attempted murder under Counts 2, 3, and 4, you must then decide whether the People have proved the additional allegation that the attempted murder was done willfully and with deliberation and premeditation.
[¶] . . . [¶]
"[ ] Valdez or [defendant] acted willfully if he intended to kill when he acted. [ ] Valdez or [defendant] deliberated . . . if he carefully weighed the considerations for and against his choice, and knowing the consequences, decided to kill. [ ] Valdez or [defendant] acted with premeditation if he decided to kill before completing the acts of attempted murder . . . . The attempted murder was done willfully [and] with deliberation and premeditation if either the defendant, or [ ] Valdez, or both of them acted with that state of mind.
"The length of time the person spends considering whether to kill does not alone determine whether the attempted killing is deliberate and premeditated. The amount of time required for deliberation and premeditation may vary from person to person and according to the circumstances. A decision to kill made rashly, impulsively, or without careful consideration of the choice and its consequences is not deliberate and premeditated. On the other hand, a cold, calculated decision to kill can be reached quickly. The test is the extent of the reflection, not the length of time.
"The People have the burden of proving this allegation beyond a reasonable doubt. If the People have not met this burden, you must find this allegation has not been proved."
1. Standard of Review
We apply the de novo standard of review when assessing whether jury instructions correctly state the law. (People v. Posey (2004) 32 Cal.4th 193, 218.)
2. Analysis
Defendant concedes that the California Supreme Court has held that an accomplice may be found criminally liable for attempted premeditated murder based on the mental state of the principal. (People v. Favor (2012) 54 Cal.4th 868, 877-878 (Favor); People v. Lee (2003) 31 Cal.4th 613, 624-625 (Lee).) He argues, however, that the prior cases were wrongly decided and are no longer valid in light of the United States Supreme Court opinion in Alleyne v. United States (2013) 570 U.S. 99 (Alleyne).
The Attorney General argues that we are bound by stare decisis to follow Favor, supra, 54 Cal.4th 868 and Lee, supra, 31 Cal.4th 613, and affirm the conviction for attempted premeditated murder. (People v. Johnson (2012) 53 Cal.4th 519, 528; Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 (Auto Equity Sales, Inc.).) We agree with the Attorney General that we are bound by Favor and Lee. (Auto Equity Sales, Inc., supra, 57 Cal.2d at p. 455; People v. Perez (2020) 9 Cal.5th 1, 13.) Further, we disagree with defendant's argument that Favor and Lee are no longer valid under Alleyne, supra, 570 U.S. 99. The Alleyne court held that "[a]ny fact that, by law, increases the penalty for a crime is an 'element' that must be submitted to the jury and found beyond a reasonable doubt." (Id. at p. 103.) Here, the issue of whether the attempted murder was premeditated was submitted to the jury, which found it true beyond a reasonable doubt. Thus, Alleyne does not change our conclusion that we are bound to follow Favor and Lee. B. Sentencing
Our Supreme Court will soon decide the continuing viability of the holding in Favor that "[u]nder the natural and probable consequences doctrine, there is no requirement that an aider and abettor reasonably foresee an attempted premeditated murder as the natural and probable consequence of the target offense. It is sufficient that attempted murder is a reasonably foreseeable consequence of the crime aided and abetted, and the attempted murder itself was committed willfully, deliberately and with premeditation." (Favor, supra, 54 Cal.4th at p. 880; see People v. Lopez (Aug. 21, 2019, B271516, review granted Nov. 13, 2019, S258175).) Defendant does not contend that he was convicted of attempted murder under a natural and probable consequences theory and that portion of the holding in Favor has no applicability to this appeal.
Defendant next contends that the trial court abused its discretion by failing to consider certain evidence, namely, "the social history report," which was marked as Exhibit C-4, during the Franklin hearing. We review a trial court's sentencing decisions for abuse of discretion. (People v. Leon (2010) 181 Cal.App.4th 452, 468; People v. Murray (1990) 225 Cal.App.3d 734, 750.)
People v. Franklin (2016) 63 Cal.4th 261 (Franklin). "Franklin processes are more properly called 'proceedings' rather than 'hearings.' A hearing generally involves definitive issues of law or fact to be determined with a decision rendered based on that determination. [Citations.] A proceeding is a broader term describing the form or manner of conducting judicial business before a court." (In re Cook (2019) 7 Cal.5th 439, 449, fn. 3.) "A Franklin proceeding gives 'an opportunity for the parties to make an accurate record of the juvenile offender's characteristics and circumstances at the time of the offense so that the Board [of Parole Hearings], years later, may properly discharge its obligation to "give great weight to" youth-related factors (§ 4801, subd. (c)) in determining whether the offender is "fit to rejoin society" . . . .' [Citation.] At the proceeding, 'the court may receive submissions and, if appropriate, testimony pursuant to procedures set forth in section 1204 and rule 4.437 of the California Rules of Court, and subject to the rules of evidence. [The defendant] may place on the record any documents, evaluations, or testimony (subject to cross-examination) that may be relevant at his eventual youth offender parole hearing, and the prosecution likewise may put on the record any evidence that demonstrates the juvenile offender's culpability or cognitive maturity, or otherwise bears on the influence of youth-related factors.'" (In re Cook, supra, 7 Cal.5th at pp. 449-450, fn. omitted.) We will use the term "Franklin hearing" to refer to a Franklin proceeding.
The record reflects that defendant initially retained Amy York as an expert witness to prepare a report for purposes of a Franklin hearing. Defendant subsequently advised the court that he no longer wanted York to serve as an expert and requested the appointment of a different expert witness. York, however, had submitted to the court a letter, which the court filed under seal after concluding it was an ex parte communication. The court provided a copy of York's letter to defense counsel. Then, on November 30, 2018, the court ordered York to turn over a copy of her entire file on this matter to defense counsel.
On December 4, 2018, the trial court conducted the Franklin hearing. During that hearing, the court stated that it was in "receipt of several documents," which it would mark for the record. The court then listed the exhibits:
"Court's No. 1 for purposes of this hearing is an 11-page letter from Dr. Catherine Scarf . . . which I have read and considered.
"Court's Exhibit 2 is a letter from the defendant's brother, Staff Sergeant Raymond Esparza. It's two pages. I have read and considered that letter.
"Court's Exhibit 3 will be a handwritten letter, two pages, from the defendant to the court, which I have read and considered.
[¶] . . . [¶]
"[ ] Last what I will mark as Court's 4 will be a 13-page document. It's entitled, 'Social History for Fernando Esparza from Amy York.'
"I don't really need to read that, but I am going to mark it as part of the court file for purposes of the Franklin hearing. But I have read everything else."
The trial court added: "The items that I have just referenced, with the exception of the last one from Amy York, I have read and considered for purposes of sentencing and for purposes of the Franklin hearing. They will be moved into evidence for purposes of the Franklin hearing. Therefore, they will be available to the California Department of Corrections to review when [defendant] becomes eligible for a parole hearing."
The trial court then proceeded to sentencing and the prosecutor argued that each of the sentences should be run consecutively. Defense counsel countered that the court should run one of the counts concurrently but acknowledged that he did not request that all the counts run concurrently because he "recognize[d] the gravity of the situation." In arguing for mitigation, defense counsel stated, "[t]he social history, which I know the court hasn't reviewed extensively, does outline a very, very difficult childhood." The court responded, "I think that's reflected in the letter from his brother as well." Defense counsel agreed: "Yes. Thank you. It is."
Defense counsel never requested that the court review the social history for purposes of sentencing. Thus, defendant has forfeited his argument that the court was required to consider the social history report at sentencing. (See People v. Sperling (2017) 12 Cal.App.5th 1094, 1100 ["Appellant forfeited his sentencing claims because he did not object at the time of sentencing"].)
Conceding that counsel did not object when the trial court stated that it had not reviewed the social history report, defendant alternatively asserts that defense counsel provided ineffective assistance. "To satisfy this burden, the defendant must first show counsel's performance was deficient, in that it fell below an objective standard of reasonableness under prevailing professional norms. Second, the defendant must show resulting prejudice, i.e., a reasonable probability that, but for counsel's deficient performance, the outcome of the proceeding would have been different . . . . 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." (People v. Mai (2013) 57 Cal.4th 986, 1009.)
The circumstances under which the social history report was submitted to the trial court are not entirely clear. The report is not dated, does not include the author's name (although the court stated it was authored by York), and is comprised mostly of hearsay statements. Defense counsel may have concluded that if he were to ask the court to review the report for purposes of sentencing, he would elicit a meritorious objection for lack of authentication and hearsay, which would also preclude the report from being admitted for the Franklin hearing. (Evid. Code, §§ 1200 [hearsay inadmissible unless exception applies], 1400 [authentication of a writing]; see People v. Rodriguez (2018) 4 Cal.5th 1123, 1132 [at Franklin hearing, trial court may "exercise its discretion to conduct this process efficiently, ensuring that the information introduced is relevant, noncumulative, and otherwise in accord with the governing rules, statutes, and regulations"].) Defense counsel may have reasonably concluded that the best result for his client was to have the report available for a future parole hearing but not risk having it objected to for the sentencing hearing.
Further, even if defendant could demonstrate that counsel was deficient, he cannot demonstrate prejudice. Although the social history report provided a thorough explanation of defendant's difficult childhood, his childhood was also referenced in his brother's letter and Dr. Scarf's psychological assessment. Thus, the trial court was already aware of defendant's background and concluded that a consecutive sentence was appropriate. On this record, we conclude that counsel was not ineffective.
IV. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
KIM, J. We concur:
RUBIN, P. J.
MOOR, J.