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People v. Espinosa

California Court of Appeals, Fifth District
Aug 9, 2023
No. F085352 (Cal. Ct. App. Aug. 9, 2023)

Opinion

F085352

08-09-2023

THE PEOPLE, Plaintiff and Respondent, v. SHAUN MICHAEL ESPINOSA, Defendant and Appellant.

Jennifer A. Mannix, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.


NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Fresno County No. F19903199, F. Brian Alvarez, Judge.

Jennifer A. Mannix, under appointment by the Court of Appeal, for Defendant and Appellant.

Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.

OPINION

THE COURT [*]

Defendant Shaun Michael Espinosa pled no contest to stalking (Pen. Code, § 646.9, subd. (a)); first degree burglary with a nonaccomplice present (§§ 459/460, subd. (a), 667.5, subd. (c)(21)); five counts of attempted first degree residential robbery (§§ 664/211) and personal discharge of a firearm (§ 12022.53, subd. (c)); five counts of assault with a firearm (§ 245, subd. (a)(2)) and personal use of a firearm (§ 12022.53, subd. (a)); possession of a firearm by a felon (§ 29800, subd. (a)(1)); battery with serious bodily injury (§243, subd. (d)); two counts of battery (§ 243, subd. (e)(1)); two counts of evading an officer (Veh. Code, § 2800.2, subd. (a)); driving the wrong way while evading an officer (Veh. Code, § 2800.4); resisting or delaying an officer (§ 148, subd. (a)(1)); attempted kidnapping (§§ 664/207, subd. (a)); contempt of court (§ 166, subd. (c)(1)); felony vandalism (§ 594, subd. (a)); and disobeying a domestic relations court order (§ 273.6, subd. (a)). The sentence was subsequently vacated by this court in People v. Espinosa (July 26, 2022, F083105 [nonpub. opn.](Espinosa)), and the trial court was directed to resentence defendant in compliance with section 654, as amended by Assembly Bill No. 518 (2021-2022 Reg. Sess.) (Assembly Bill 518) and section 1170, subdivision (b), as amended by Senate Bill No. 567 (2021-2022 Reg. Sess.) (Senate Bill 567). Following remand, defendant was resentenced by the court. Appointed counsel for defendant asked this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised of his right to file a letter stating any grounds on appeal within 30 days of the date of filing of the opening brief. Defendant did not file a letter. He has identified no basis for relief, nor have we. We affirm.

All further undesignated statutory references are to the Penal Code unless otherwise noted.

PROCEDURAL SUMMARY

On August 6, 2020, the Fresno County District Attorney filed an information charging defendant with 24 counts: stalking (§ 646.9, subd. (a); count 1); first degree burglary with a nonaccomplice present (§§ 459/460, subd. (a), 667.5, subd. (c)(21); count 2); five counts of attempted first degree residential robbery (§§ 664/211; counts 37); five counts of assault with a firearm (§ 245, subd. (a)(2); counts 8-12); possession of a firearm by a felon (§ 29800, subd. (a)(1); count 13); battery with serious bodily injury (§ 243, subd. (d); count 14); two counts of battery (§ 243, subd. (e)(1); counts 15 &20); two counts of evading an officer (Veh. Code, § 2800.2, subd. (a); counts 16 &24); driving the wrong way while evading an officer (Veh. Code, § 2800.4; count 17); resisting or delaying an officer (§ 148, subd. (a)(1); count 18); attempted kidnapping (§§ 664/207, subd. (a); count 19); contempt of court (§ 166, subd. (c)(1); count 21); felony vandalism (§ 594, subd. (a); count 22); and disobeying a domestic relations court order (§ 273.6, subd. (a); count 23).

It was further alleged as to counts 3 through 7 that defendant personally discharged a firearm (§ 12022.53, subd. (c)); and in counts 2 and 8 through 12 that defendant personally used a firearm (a rifle). (§ 12022.5, subd. (a).)

On March 8, 2021, defendant entered an open plea of no contest to all charges and admitted the enhancement allegations. On May 26, 2021, the court sentenced defendant to 49 years four months in state prison.

Defendant appealed. On July 26, 2022, we vacated defendant's sentence and remanded his case for resentencing in accordance with two recent changes to section 1170, subdivision (b), made by Assembly Bill 518 and Senate Bill 567. (Espinosa, supra, F083105.)

On December 1, 2022, the trial court resentenced defendant. The court denied defendant's requests to (1) designate count 9, assault with a firearm (§ 245, subd. (a)(2)) with an enhancement for personal use of a firearm (§ 12022.5, subd. (a)) as the principal offense; (2) impose the middle or lower term for counts 2, 7 through 12, 16, and 19; and (3) strike or stay the punishment for the section 12022.53, subdivision (c) firearm enhancements and instead impose a single section 12022.5, subdivision (a) firearm enhancement. The court cited three factors in aggravation shown by the certified documents admitted to prove his prior criminal history: (1) defendant had a lengthy criminal history that was increasing in seriousness; (2) defendant was on probation when the current offenses occurred; and (3) defendant had served a prior prison term. Accordingly, the court reimposed the sentence of 49 years four months.

On count 7 (attempted first degree residential robbery), the principal term, the trial court imposed three years (the upper term), plus 20 years for the section 12022.53, subdivision (c) firearm enhancement. On each of counts 4 through 6, the court imposed eight months (one-third the midterm), plus six years eight months (one-third the midterm) for the section 12022.53, subdivision (c) firearm enhancements, consecutive. On count 13, the court imposed eight months (one-third the midterm), consecutive. On count 14, the court imposed one year (one-third the midterm), consecutive. On counts 1, 17, 22, and 24, the court imposed eight months (one-third the midterm), consecutive.

On counts 2, 8 through 12, 16, and 19, the trial court imposed upper terms on the offenses and on their enhancements, and on count 3, the court imposed one-third the midterm on the offense and its enhancement, but stayed the sentences on those counts pursuant to section 654. On the misdemeanor counts 15, 18, 20, 21, and 23, the court also stayed defendant's sentences pursuant to section 654.

On December 5, 2022, defendant filed a timely notice of appeal.

FACTUAL SUMMARY

Our factual summary is drawn from the statement of facts presented in this court's July 26, 2022 opinion on defendant's direct appeal. (Espinosa, supra, F083105.)

"Defendant and M.M. were in an on-again, off-again dating relationship for several years. Defendant had a history of physically abusing M.M. while they were together, and harassing her when she tried to end the relationship on different occasions.

"On May 6, 2019, at 3:00 a.m., defendant entered M.M.'s home wearing a Halloween mask and carrying an air soft rifle or pellet gun. M.M., her parents and four siblings were inside the home. Defendant demanded their phones, chased them, and slammed a door into one of their legs, bruising it. He slapped M.M. so hard that he knocked her down. During this altercation, he also fired his gun at M.M.'s family members three times, narrowly missing them. He fled when they said someone would hear him and call the police. The family called 911 but defendant had already fled by the time police officers arrived.

"M.M. next saw defendant less than a week later, on May 12, 2019, as she exited her grandmother's home. He drove past her in a car she did not recognize.

"Police officers spotted defendant the next day, May 13, 2019. Defendant fled at a high rate of speed until he stopped his car at a barricade. He exited his car and tried to flee on foot but was detained and arrested." (Espinosa, supra, F083105.)

DISCUSSION

Wende Review

As noted above, defendant's appellate counsel filed a brief pursuant to People v. Wende, supra, 25 Cal.3d 436, asserting he could not identify any arguable issues in this case. After defendant's appellate counsel filed his Wende brief, by letter dated May 1, 2023, we invited defendant to inform this court of any issues he wished addressed. Defendant did not respond to our letter. Upon review of the record, we have identified no basis for relief.

Before the resentencing hearing, defendant filed a sentencing memorandum, requesting the trial court (1) designate count 9 as the principal term, (2) impose the middle or lower term on counts 2, 7 through 12, 16, and 19, and (3) strike the section 12022.53, subdivision (c) enhancements. At the resentencing hearing, the court considered defendant's requests and the People's response but reimposed the original sentence of 49 years 4 months, stating:

"[T]he [c]ourt did consider the changes in the laws that were made for which [defendant] should be afforded as a consideration by the [c]ourt and it did do that. But the [c]ourt is of the opinion that the same sentence should be reimposed on [defendant] over all and so it did do that so the record's clear."

First, the trial court denied defendant's request to designate count 9 as the principal term pursuant to amended section 654 and again designated count 7 as the principal term, stating:

"The [c]ourt recognizes that under [Assembly Bill 518], [section] 654 has been newly amended which allows the [c]ourt to select any base term, not just the one that provides for the longest term. Indeed that was the position taken by the [People] and the retroactivity of [Assembly Bill 518] and why this matter again is here before the [c]ourt. And so, accordingly, the [c]ourt again selects [c]ount [7] to be the appropriate base term as it is commensurate with [defendant's] culpability regarding his conduct towards the confidential victim by merely shooting the child in the head or upper torso. So, for that reason, the [c]ourt denies the request by [d]efense to select a different base term and selects again [c]ount [7] because it does commensurate with [defendant]'s culpability regarding the conduct in this case."

Section 654, as amended by Assembly Bill 518, provides:

"An act or omission that is punishable in different ways by different provisions of law may be punished under either of such provisions, but in no case shall the act or omission be punished under more than one provision. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other." (§ 654, subd. (a).)

Here, as required by amended section 654, the court properly exercised its discretion during resentencing to choose which of defendant's counts to designate as the principal term and explained its reasoning for again designating count 7 as the principal term.

The trial court next denied defendant's request to impose the middle term for counts 2, 7 through 12, 16, and 19 pursuant to amended section 1170, subdivision (b), and again imposed the upper terms for those counts.

On October 8, 2021, Senate Bill 567 was signed into law, amending the determinate sentencing law, section 1170, subdivision (b), which delineated the trial court's authority to impose one of three statutory terms of imprisonment, known as the lower, middle, or upper terms, by making the middle term the presumptive sentence for a term of imprisonment, unless certain circumstances existed. (See Stats. 2021, ch. 731, § 1.3, adding § 1170, subd. (b)(1), (2).) Effective January 1, 2022, under the newly amended law, the court may impose an upper term sentence only where there are circumstances in aggravation, and the facts underlying all of the aggravating circumstances have been stipulated to by the defendant or found true beyond a reasonable doubt by a jury or a court if the defendant has consented to a court trial. (Ibid.) Also, under section 1170, subdivision (b)(3), the court "may consider the defendant's prior convictions in determining sentencing based on a certified record of conviction without submitting the prior convictions to a jury." (§ 1170, subd. (b)(3).) Under amended section 1170, subdivision (b)(5), the court must "set forth on the record the facts and reasons for choosing the sentence imposed. The court may not impose an upper term by using the fact of any enhancement upon which sentence is imposed under any provision of law." (§ 1170, subd. (b)(5).)

California Rules of Court, rule 4.421, subdivision (b) lists circumstances in aggravation, including, "(2) [t]he defendant's prior convictions as an adult or sustained petitions in juvenile delinquency proceedings are numerous or of increasing seriousness; [¶] (3) The defendant has served a prior term in prison or county jail ...; [and] [¶] (4) The defendant was on probation, mandatory supervision, postrelease community supervision, or parole when the crime was committed[.]" (Rule 4.421, subd. (b)(2)-(4).)

All further rules references are to the California Rules of Court.

As required by amended section 1170, subdivision (b), the trial court acknowledged the middle term was the presumptive term of imprisonment on counts 2, 7 through 12, 16, and 19, and that it had discretion to impose the upper term on those counts only if aggravating circumstances existed. However, the court explained that it found true three aggravating circumstances, all listed in rule 4.421, subdivision (b)(2) through (4), stating:

"After a consideration of the documents, the [c]ourt notes that [defendant]'s criminal history is long, unabated and he was, in fact, on a grant of supervision when the offenses were alleged to have occurred. The [c]ourt would note that he has served a prior prison term, the record reflects that. He was on a grant of supervision when his offense was committed, the records and the exhibits reflect that beyond a reasonable doubt. Prior performance on supervision was unsatisfactory, necessarily so if he was on supervision in this case-or when he committed this case. And so, for those reasons, the [c]ourt does find beyond a reasonable doubt under [r]ule 4.421(b) that these three aggravating circumstances are found true beyond a reasonable doubt."

The court explained, as required by amended section 1170, subdivision (b), that it again imposed the upper term on counts 2, 7 through 12, 16, and 19 based on the existence of these aggravating circumstances.

The trial court then denied defendant's last request that it strike or stay the punishment for the section 12022.53, subdivision (c) enhancements as to counts 3 through 7, pursuant to section 1385, and instead impose a single, alternative section 12022.5, subdivision (a) enhancement as to count 9. Defendant asserted several mitigating factors applied pursuant to rule 4.423, including (1) that multiple enhancements were alleged in a single case (rule 4.423, subd. (b)(11)), (2) defendant voluntarily acknowledged wrongdoing before arrest or at an early stage of the criminal process (rule 4.423, subd. (b)(8)) and (3) the application of an enhancement could result in a sentence over 20 years (§ 1385; rule 4.423, subd. (b)(10)).

Section 1385, subdivision (c) states:

"(1) Notwithstanding any other law, the court shall dismiss an enhancement if it is in furtherance of justice to do so, except if dismissal of the enhancement is prohibited by any initiative statute. [¶] (2) In exercising its discretion under this subdivision, the court shall consider and afford great weight to evidence offered by the defendant to prove that any of the mitigating circumstances in subparagraphs (A) to (I) are present. Proof of the presence of one or more of these circumstances weighs greatly in favor of dismissing the enhancement, unless the court finds that dismissal of the enhancement would endanger public safety. 'Endanger public safety' means there is a likelihood that the dismissal of the enhancement would result in physical injury or other serious danger to others. [¶] ... [¶] (4) The circumstances listed in paragraph (2) are not exclusive and the court maintains authority to dismiss or strike an enhancement in accordance with subdivision (a)." (§ 1385, subd. (c).)

Section 1385, subdivision (c)(2)(A) through (I) lists mitigating factors including, "(B) Multiple enhancements are alleged in a single case" and "(C) The application of an enhancement could result in a sentence of over 20 years. In this instance, the enhancement shall be dismissed." (§ 1385, subd. (c)(2)(B), (C).) Rule 4.423, subdivision (b), lists the following circumstances in mitigation:

"(8) The defendant voluntarily acknowledged wrongdoing before arrest or at an early stage in the criminal process; [¶] ... [¶] (10) Application of an enhancement could result in a sentence over 20 years; [and] [¶] (11) Multiple enhancements are alleged in a single case[.]" (Rule 4.423(b).)

However, the trial court denied defendant's request, stating,

"Now, the [c]ourt recognizes it has the ability to supplant a lesser-included gun enhancement under the reasoning of People v. Tirado [(2022) 12 Cal.5th 688]. No one's requested that, but I want to make it clear for the record that the [c]ourt recognizes it has that ability but declines to do so finding that to do so would not be in the interest of justice. So, accordingly, the [c]ourt imposes the consecutive 20-year term with the gun allegation in [c]ount [7] pursuant to ... [s]ection 12022.53.... The question is now whether the [c]ourt is required to dismiss the gun enhancements again attached to [c]ounts [4], [5,] and [6], and if so, whether there is an exception to this requirement. And so the [c]ourt does note that the furtherance of justice standard considers the constitutional rights of the [d]efendant and the interest of society represented by the People. The sentencing [c]ourt must make an individualized consideration of the factors in section 1385 [subdivision] (c), the [d]efendant's background, any criminal history, and any other factors that would motivate a reasonable judge in the exercise of its discretion. The [c]ourt again notes that there are multiple enhancements alleged in this case. And the application of enhancement could result in a sentence over 20 years. The [c]ourt noting that, again, that [defendant]'s criminal history is long and unabated and, to the [c]ourt's way of thinking, it is escalating in violence, likewise, too. And the [c]ourt also notes for purposes of this analysis under [section] 1385, that [defendant] was on a grant of supervision. Accordingly, the [c]ourt does not find it is the interest of justice to dismiss the enhancements to [c]ounts [4], [5,] and [6]. And noting first that [defendant] intentionally fired a total of three shots inside the home, imposing the gun penalty as to these counts is commensurate again with his culpability and the manner in which he perpetrated these crimes. Again, he was on a grant of supervision having been released from prison for a felony assault conviction in 2018. These offenses happened within about a year after he was released from prison. Again as stated, his criminal history is lengthy and unabated and it's significant, quite frankly ._ This is the [d]efendant's fourth and hopefully final prison commitment. The [c]ourt is also mindful next that the [d]efendant stalked his ex-girlfriend [M.M.] as admitted in [c]ount [1] which culminated into his dangerous confrontation in her family home. The [c]ourt further finds that dismissal of this enhancement or any enhancements would endanger the public safety, meaning the dismissal of any enhancements would mean the [d]efendant would be sooner forced into society creating a likelihood that dismissal would result in further physical injury to her or serious danger to her family. Finally, the [c]ourt, frankly, is not satisfied the [d]efendant has any prospects outside the prison system. Accordingly, the [c]ourt declines to strike any gun enhancements in the interest of justice. And the [c]ourt again imposes the enhancements as previously imposed again finding imposition is commensurate with [defendant]'s culpability."

Here, the court's denial of defendant's request to stay or strike the section 12022.53 enhancements and instead impose a single section 12022.53 enhancement was a proper exercise of the court's discretion pursuant to section 1385. The court considered the applicable mitigating factors, but determined they were outweighed by the danger that defendant presented to public safety, explaining that defendant's earlier release from prison would likely result in further physical injury or other serious danger to M.M. and her family.

After a thorough review of the record, we agree with defendant's appellate counsel there are no arguable issues in this case. There is nothing in this record to suggest any error occurred.

DISPOSITION

The judgment is affirmed.

[*] Before Poochigian, Acting P. J., Franson, J. and Meehan, J.


Summaries of

People v. Espinosa

California Court of Appeals, Fifth District
Aug 9, 2023
No. F085352 (Cal. Ct. App. Aug. 9, 2023)
Case details for

People v. Espinosa

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. SHAUN MICHAEL ESPINOSA, Defendant…

Court:California Court of Appeals, Fifth District

Date published: Aug 9, 2023

Citations

No. F085352 (Cal. Ct. App. Aug. 9, 2023)