Opinion
E066087
01-25-2018
THE PEOPLE, Plaintiff and Respondent, v. JOSHUA SANTINO ESTRADA, Defendant and Appellant.
Brett Harding Duxbury, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina, and Mary Katherine Strickland, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. BAF1500017) OPINION APPEAL from the Superior Court of Riverside County. Irma Poole Asberry, Judge. Affirmed in part; reversed in part with directions. Brett Harding Duxbury, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina, and Mary Katherine Strickland, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted appellant, Joshua Santino Estrada, of several counts of assault, criminal threats, and being a felon in possession of a firearm. In one incident, Estrada confronted a neighbor by pointing a gun in his face and verbally threatening him. In another, Estrada confronted four men on the street with a gun and fired an errant shot at one before running off. The jury hung 11 to 1 in favor of conviction on an attempted murder charge. The jury found Estrada committed the assaults in the second incident and the gun-possession offense for the benefit of his gang, the predicate for a sentence enhancement.
At sentencing, the parties stipulated to a sentence of 77 years four months in state prison. In return, the People agreed to dismiss the attempted murder charge rather than try Estrada again. The overall sentence included separate sentences for the aggravated assault and the criminal threat against the first victim.
On appeal, Estrada contends (i) insufficient evidence supported the finding he acted for the benefit of his gang, (ii) the trial court prejudicially violated his right to confront witnesses against him by allowing a gang expert to rely on case-specific testimonial hearsay, and (iii) the trial court erred under Penal Code section 654 by executing sentences for both the assault and the threat against the first victim.
We hold sufficient evidence supported finding the crimes were gang related, the challenged expert testimony was harmless, and Estrada cannot challenge his sentence based on Penal Code section 654 because he agreed to a stipulated sentence.
However, Estrada also contends he is entitled to resentencing because a recent amendment giving the court the discretion to strike firearm enhancements in the interests of justice applies to cases not yet final on appeal. We remand the case for the trial court to exercise its discretion in this connection but otherwise affirm.
I
FACTUAL BACKGROUND
A. The Offenses
On January 17, 2015, Estrada got involved in a string of confrontations on Date Avenue in Cabazon, California.
First, Estrada argued with his girlfriend outside her house on the corner of Elm Street and Date Avenue. Estrada's first victim, AS, who lived nearby, saw the argument when he came out of his house to stop his dog from barking. AS moved his dog into a kennel in back and returned to lock his gate. In the meanwhile, the girlfriend became upset and went inside her house.
When AS came back to his front gate, he saw Estrada walking toward him. Estrada wore a dark blue or black sweatshirt hoodie and dark shorts. He approached within two feet, said, "What the fuck are you looking at?" and then pulled a nine-millimeter semiautomatic pistol out of the pocket of his hoodie and held it in AS's face for a few seconds. Estrada said something like "I'll blow your fucking head off." The victim said he was afraid, but responded, "Man, do what you gotta do." Estrada lowered the gun and walked away.
Estrada had another run-in with a group of men down Date Avenue. Estrada first crossed paths with DW and DC, who were working on a car parked in front of DC's house. DW said he saw Estrada, whom he did not know, walking down the street, acting strangely. DW described him as "chollo walking," which he said involved rolling your shoulders, "walk[ing] like he was tough or something." Estrada said, "What's up?" in an unfriendly way, and DW and DC responded by forcefully telling him to leave. Estrada continued walking down the street and kept looking back at them until he turned a corner.
Estrada returned about 15 minutes later. By then, DC's brother, WC, and their neighbor, FA, had joined them. WC and FA said they saw Estrada walking down the street erratically, zigzagging. WC thought "it was one of our cracked-out friends . . . [but] once he got closer, we didn't really recognize [him]." FA approached Estrada, carrying tools in his hand. According to WC, Estrada started acting aggressively. "He said, Who's the punk bitch now? Who are you calling a punk bitch? Who are you calling a punk bitch?" FA said he responded, "Nobody said anything . . . nobody here knows you." According to all four witnesses, Estrada identified his gang, saying "I'm Little One from East Side Banning Sapos" and pulled out a gun and pointed it in FA's face. They reported Estrada also waved the gun around "kind of hopping back and forth, like doing gestures, bringing it closer to [FA's] face." WC said Estrada had tattoos that appeared to indicate a gang affiliation, though FA said the tattoos were covered up and he did not get a good look at them. Neither DC nor DW mentioned Estrada's tattoos.
WC took a chance and ran behind a car to try to pick up a rock to use against Estrada. Estrada turned and fired in WC's direction, but the bullet struck the car. Estrada had a black bandana wrapped around his weapon, which prevented the empty cartridge from ejecting. As a result, the weapon did not discharge when Estrada tried to fire additional rounds—the witnesses said he pulled the trigger between one and four more times. Estrada had already begun backing away when he shot the gun, and after firing he ran from the scene.
According to Estrada, he was walking quickly down Date Avenue with his head down when he noticed FA approaching him holding a wrench. FA said, "What are you doing around here? You're not from here. Where are you from?" Estrada said he was with East Side Banning Sapo in an effort to scare him. But FA continued approaching, as did two other people behind FA, and Estrada—who stands five-foot one-inch tall—said he felt threatened. Estrada said he pulled his gun, told them to leave him alone, and started backing away. At that point, he saw WC start running. Estrada said he was scared and "didn't know what was going on." He admitted firing the gun and attempting to fire it a second time. He then ran off.
About 30 minutes after the initial argument, law enforcement detained Estrada. At trial, Estrada admitted the shooting was a mistake and said he did not intend to kill WC or anyone else.
B. Charges
The Riverside County District Attorney charged appellant with one count of attempted murder (§§ 187, 664), five counts of aggravated assault (§ 245, subd. (b)), one count of making a criminal threat (§ 422), and one count of being a felon in possession of a firearm (§ 29800, subd. (a)(1)). The information alleged Estrada personally used a firearm (§12022.5, subd. (a)) in committing the attempted murder, assault, and threat offenses, committed each offense for the benefit of a criminal street gang (§ 186.22, subd. (b)), had been convicted of a prior strike offense (§§ 667, subds. (c) & (e)(1), 1170.12, subd. (c)(1)), and had served a prior prison term (§ 667.5, subd (b)).
Unlabeled statutory citations refer to the Penal Code.
C. Gang Evidence
At trial, Estrada testified he became a member of the East Side Banning Sapos (Sapos) when he was 13 or 14 years old. A police officer and former gang investigator testified he contacted Estrada on three occasions in 2006 and Estrada admitted he was a Sapos member each time. The parties stipulated that on March 17, 2007, Estrada and four other Sapos members attacked two people, and Estrada stabbed one of the victims. As the attack was ongoing, Estrada and his cohorts were yelling out "East Side Banning Sapo." Estrada pled guilty to attempted murder for this assault. He served about six years on that conviction, from 2008 to 2014. However, Estrada testified he was not involved in the Sapos at the time of the assaults in this case, had no interest in getting involved with them again, and was not trying to promote or help the gang by committing the assaults.
The prosecution also presented the testimony of an expert in criminal street gangs, Detective Donald Atkinson. He explained violent crimes of Sapos members serve to intimidate community members and dissuade them from cooperating with law enforcement. He explained that gang members "claim" their gangs by tagging with graffiti, saying their gang name during an offense, or exposing gang tattoos. Claiming during an offense ensures the intimidation benefits both the member and the gang. He also explained gang members are expected to commit such offenses, and that gang members acquire status within the gang by doing so.
Detective Atkinson also testified about his experience specific to the Sapos gang. He said it has about 45 to 70 members, 30 to 50 of them in prison at any given time. They use various symbols in their tattoos and on clothing, including a frog or toad ("sapo" means "toad" in Spanish), "ESBS," "ES," "Sapo," "IE" (for Inland Empire), and a "B" (especially in the style used by the Boston Red Sox). He said the Sapos' turf includes all of Banning and that Cabazon is on the outskirts of its territory. Their primary gang activities are committing assaults (both armed and unarmed) and criminal threats. Detective Atkinson opined the Sapos gang is a criminal street gang within the meaning of section 186.22, subdivision (f).
Detective Atkinson participated in the investigation of the assault in this case. He helped search Estrada's girlfriend's house, where he found a stuffed frog and baseball caps with the Boston Red Sox "B." He also interviewed Estrada, who told him he knew nothing about the shooting, denied having a gun, and said he used to be a member of the Sapos, but no longer associated with them.
Detective Atkinson also based some of his testimony on reports and out-of-court statements. He told the jury Estrada had been convicted in 2005 of committing grand theft from a person after he assaulted a school classmate, told him to get out of town, and took his puppy. He testified Estrada had no gang tattoos when he entered prison in 2008. He testified, based on an out-of-court conversation, that Estrada's father had been a member of a Los Angeles gang called Marianna Maravilla. Finally, he testified Estrada had been in general population each time he was in prison, including the month before these assaults. He suggested someone who had tried to exit a gang would have asked to go into protective custody rather than stay in the general population.
Detective Atkinson concluded Estrada assaulted FA, WC, DC, and DW for the benefit of the Sapos. He identified three case-specific facts as support for his conclusion: Estrada (i) yelled out his gang nickname and the name of the gang, (ii) wore prominent Sapos' tattoos on his head and lower leg that were exposed during the attacks, and (iii) committed an offense consistent with the Sapos' pattern of criminal activity—violent assaults with deadly weapons. He also noted Estrada needed to regain status after a period of years in custody. The offense "gives him status in the gang. He's gone for X amount of years on a prior case. He comes out. He's got to put in his work. That's just the gang life."
D. Verdict and Sentence
On March 30, 2016, a jury convicted Estrada of all the charges against him except the attempted murder charge, on which the jury hung 11 to 1 in favor of conviction. The jury found four of the assault counts (counts 4-7) and the gun possession count (count 8) gang related, but not the remaining assault count (count 2) or the criminal threat count (count 3). The jury also found Estrada personally used a gun to commit the assaults and the threat (counts 2-7). Estrada admitted the criminal history allegations and the trial court found them to be true. On May 20, 2016, the People moved to amend the information to include a prior serious felony (§ 667, subd. (b)), and Estrada admitted that allegation as well.
The trial court sentenced Estrada to a stipulated sentence of 77 years four months in prison. In exchange, the People dismissed the attempted murder charge rather than retry Estrada. We provide additional factual background related to the sentencing in part II.C., post.
Estrada filed a timely notice of appeal.
II
DISCUSSION
Estrada challenges the jury's finding he committed assaults for the benefit of a gang and the propriety of his sentence. He argues the gang evidence was insufficient to support the gang finding and the People's expert improperly relied on case-specific testimonial hearsay. He also argues the court improperly executed sentences for his simultaneous gun assault and verbal threat against AS. We first address the gang evidence issues, then turn to Estrada's challenge to his sentence.
A. Sufficiency of the Evidence Estrada Acted for the Benefit of the Gang
The California Street Terrorism Enforcement and Prevention Act (STEP Act) (§ 186.20 et seq.) includes an enhanced sentence for "any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members." (§ 186.22, subd. (b)(1).) The enhancement has two elements. The People must prove (i) the offense was gang related—either committed in association with the gang, or committed for the benefit of the gang and (ii) defendant acted with the specific intent to promote, further, or assist in any criminal conduct by gang members. (People v. Albillar (2010) 51 Cal.4th 47, 60, 65-67 (Albillar).) Estrada challenges the sufficiency of the evidence on the first element only—that the evidence was insufficient to show the offense was gang related.
The STEP Act defines a "criminal street gang" as "any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated in [subdivision (e)], having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity." (§ 186.22, subd. (f).) Estrada does not challenge the evidence that the Sapos gang is a criminal street gang.
"'Our role in considering an insufficiency of the evidence claim is quite limited.'" (In re Alexander L. (2007) 149 Cal.App.4th 605, 610.) We review "the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (Albillar, supra, 51 Cal.4th at p. 60.) "If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding." (Ibid.) We neither reweigh evidence nor reevaluate credibility in conducting our review. (Ibid.)
The People presented a great deal of evidence Estrada assaulted WC, FA, DC, and DW for the benefit of the Sapos. WC reported Estrada approached them aggressively, saying, "Who's the punk bitch now? Who are you calling a punk bitch? Who are you calling a punk bitch?" FA responded, "Nobody said anything . . . nobody here knows you." According to all four witnesses, Estrada then identified his gang, saying "I'm Little One from East Side Banning Sapos," pulled out a gun, and pointed it in FA's face. WC said Estrada had tattoos that appeared to indicate a gang affiliation. Finally, Estrada admitted he claimed to be a member of the Sapos in an effort to scare his victims.
Detective Atkinson testified violent crimes of Sapos members serve to intimidate community members, reinforce the gang's reputation for violence, and dissuade victims and witnesses from cooperating with law enforcement. He explained gang members "claim" their gangs by saying their gang name or exposing gang tattoos during an offense to ensure the intimidation benefits both the member and the gang. He also explained gang members are expected to commit such offenses, and that gang members acquire status within the gang by doing so. Detective Atkinson concluded Estrada's assault benefited the Sapos by enhancing its reputation for violence.
Our Supreme Court has held "[e]xpert opinion that particular criminal conduct benefited a gang by enhancing its reputation for viciousness can be sufficient to raise the inference that the conduct was 'committed for the benefit of . . . a[] criminal street gang' within the meaning of section 186.22(b)(1)." (Albillar, supra, 51 Cal.4th at p. 63.) Here, the jury could reasonably have concluded from the testimony by all involved in the incident that Estrada announced his membership in the gang in committing the offense and the expert's testimony that the assault would enhance the gang's reputation for committing violent assaults that Estrada acted for the benefit of the gang. We cannot, in the face of such evidence, conclude the jury erred in making that finding.
The Supreme Court's holding answers Estrada's complaint that the People did not put on evidence that Estrada's offense in fact benefited the gang or that Estrada's status in the gang was in fact enhanced. An expert's background testimony about the working of gangs may assist jurors in deciding whether an offense was for the benefit of the gang and evidence that an offense will enhance a gang's reputation for violence provides an adequate basis from which jurors may infer a crime was committed for the benefit of a gang. Of course, jurors need not draw the inference. But they did in this case, and we conclude the inference was reasonable.
Estrada cites several cases meant to establish Detective Atkinson's testimony was speculative and therefore did not adequately support the jury's finding. All are readily distinguishable. In People v. Ramon (2009) 175 Cal.App.4th 843, 851, the Court of Appeal disapproved an expert's opinion the defendant used a knife to benefit a gang where "[t]here were no facts from which the expert could discern whether [the offenders] were acting on their own behalf the night they were arrested or were acting on behalf of the [gang]." Here, among other things, Detective Atkinson and the jury had the witnesses' testimony and Estrada's admission that he had claimed the gang during the assault.
In People v. Ochoa (2009) 179 Cal.App.4th 650, 658, this court reversed gang enhancements, but only where the "[d]efendant did not call out a gang name . . . [or] display gang signs . . . while committing the instant offenses . . . [t]here was no testimony that the victim saw any of defendant's tattoos . . . [and] [t]here was no evidence the crimes were committed in . . . gang territory." Here, fact witnesses established Estrada called out the Sapos' name and his own moniker, wore visible gang tattoos, and committed the offense on the outskirts of the Sapos' territory. Detective Atkinson's testimony therefore had adequate factual underpinnings, and our Ochoa decision does not help Estrada.
In People v. Ferraez (2003) 112 Cal.App.4th 925, 931, the Court of Appeal noted, as Estrada contends, that "the expert's testimony alone would not have been sufficient to find the drug offense was gang related." However, the Ferraez court upheld defendant's conviction for street terrorism because the expert's testimony did not stand alone; "it was coupled with other evidence from which the jury could reasonably infer the crime was gang related." (Ibid.) Specifically, the defendant made statements to the arresting officer that he was a member of one gang and a friendly gang gave him permission to sell the drugs where he did. Estrada's argument exhibits the same flaw. Detective Atkinson's testimony did not stand alone, but was supported by the testimony of four eyewitnesses and Estrada's own admission.
B. Case-Specific Expert Testimony
Subject to certain exceptions, the admission of testimonial hearsay against a criminal defendant violates the Sixth Amendment right to confront and cross-examine witnesses. (Crawford v. Washington (2004) 541 U.S. 36.) The California Supreme Court recently held this rule limits an expert witness from "relat[ing] as true case-specific facts asserted in hearsay statements, unless they are independently proven by competent evidence or are covered by a hearsay exception." (People v. Sanchez (2016) 63 Cal.4th 665, 686 (Sanchez).) Estrada contends the trial court violated these principles by permitting Detective Atkinson to offer case-specific hearsay as a basis for his opinion that Estrada acted for the benefit of the Sapos.
In Sanchez, the People charged defendant with active gang participation and felony drug possession for the benefit of a gang. (Sanchez, supra, 63 Cal.4th at p. 671.) The People's gang expert relied on prior police reports and STEP notices describing encounters with the defendant and others to conclude the defendant was a gang member. (Sanchez, at p. 672.) On appeal, the defendant argued the contents of the prior police reports and STEP notices were testimonial hearsay in violation of Crawford. The People countered the evidence was not admitted for its truth, but only to support the expert's opinion. (Sanchez, at p. 674.)
The Supreme Court reaffirmed the common law distinction between expert testimony on general background and expert testimony on "case-specific facts" and held "[w]hen any expert relates to the jury case-specific out-of-court statements, and treats the content of those statements as true and accurate to support the expert's opinion, the statements are hearsay" and are inadmissible "unless they are independently proven by competent evidence or are covered by a hearsay exception." (Sanchez, supra, 63 Cal.4th at pp. 676, 685-686.)
The holding responds to the use of limiting instructions about experts relying on hearsay, which tell the jury "'matters admitted through an expert go only to the basis of his opinion and should not be considered for their truth.'" (Sanchez, supra, 63 Cal.4th at p. 679.) The court explained the "flaw in the not-for-the-truth limitation when applied to case-specific facts" is "[w]hen an expert relies on hearsay to provide case-specific facts, considers the statements as true, and relates them to the jury as a reliable basis for the expert's opinion, it cannot logically be asserted that the hearsay content is not offered for its truth." (Id. at p. 682, italics added.) To the contrary, the Supreme Court concluded, "'the validity of [the expert's] opinion ultimately turn[s] on the truth'" of the hearsay content. (Id. at. pp. 682-683, italics altered.) The court held the expert's statements relating the contents of the police reports and STEP notices constituted testimonial hearsay because the statements in those documents were made to investigating police officers and concerned "case-specific facts." (Sanchez, at pp. 694-697.)
Here, Estrada limits his Sanchez objection to the introduction of just a few pieces of Detective Atkinson's testimony. He contends Detective Atkinson, like the expert in Sanchez, relied on what the detective identified as "reports" to support the following case-specific facts: (i) Estrada committed a gang-related "grand theft person in 2005, telling the victim to get out of town and stealing his puppy dog," (ii) he "had no gang tattoos on his body in 2008," when he began a six year term in prison, and (iii) "when [Estrada] was in custody on several occasions, he was in the general population, and thus was on good terms with his gang." Estrada also complains Detective Atkinson testified Estrada's father used to be a gang member based on an out-of-court conversation the detective had with the father. These pieces of expert testimony support the conclusion Estrada was a member of the Sapos in 2005 and remained a member while in prison between 2008 and 2014. They thus tend to support Detective Atkinson's opinion that Estrada committed his 2015 assaults for the benefit of the Sapos.
In fact, Detective Atkinson did not testify the 2005 puppy theft conviction was gang related, so the testimony does not support finding he was a gang member in 2005.
We assume, without deciding, the complained of pieces of Detective Atkinson's testimony concern case-specific out-of-court testimonial statements offered for the truth of the matter asserted. Even so, Estrada cannot prevail because the introduction of that testimony was harmless. The admission of such evidence is prejudicial unless the People establish it was harmless beyond a reasonable doubt. (Sanchez, supra, 63 Cal.4th at p. 698.) We conclude the People have carried their burden here.
"Determining prejudice requires an examination of the elements of the gang enhancement and the gang expert's specific testimony. [¶] The gang enhancement applies to one who commits a felony 'for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members.'" (Sanchez, 63 Cal.4th at p. 698 [quoting § 186.22, subd. (b)(1)].) Like the defendant in Sanchez, Estrada "raises no confrontation claim against Detective [Atkinson's] background testimony about general gang behavior or descriptions of the [Sapos] gang's conduct and its territory. This testimony was based on well-recognized sources in [the detective's] area of expertise. It was relevant and admissible evidence as to the [Sapos] gang's history and general operations." (Sanchez, at p. 698.)
Detective Atkinson's testimony regarding Estrada's personal involvement with the gang tends to establish Estrada's intent to benefit the Sapos gang when committing the assaults. "While gang membership is not an element of the gang enhancement [citation], evidence of defendant's membership and commission of crimes in [the gang's] territory bolstered the prosecution's theory that he acted with intent to benefit his gang, an element it was required to prove." (Sanchez, supra, 63 Cal.4th at pp. 698-699.)
Here, the would-be offending expert testimony was surplus. The record contains a superabundance of evidence of Estrada's gang membership and his intent to benefit the gang. All four witnesses testified Estrada identified his gang and gave his gang moniker while assaulting them. Estrada himself admitted he claimed the gang, though he tried to downplay its importance. In addition, it is uncontested Estrada wore tattoos indicating his affiliation with the Sapos. Estrada admitted he became a member of the Sapos when he was 13 or 14 years old. A former gang investigator testified Estrada admitted to being a gang member on three occasions in 2006. Finally, the parties stipulated Estrada pled guilty to attempted murder for his role in an attack in 2007 in which he and his cohorts yelled out "East Side Banning Sapo." Estrada served approximately six years for that offense, from 2008 to 2014. Together with Detective Atkinson's admissible background testimony, the jury had far more than enough evidence to conclude Estrada remained a member of the Sapos and acted with the intent of benefiting the gang by committing the assault. The only contrary evidence was Estrada's self-serving assertion that he was no longer associated with the gang; but that testimony was directly contradicted by the uncontested evidence that he yelled out the gang name while conducting the assaults. (See People v. Ferraez, supra, 112 Cal.App.4th at p. 931 [upholding enhancement though "defendant later denied making these statements and admissions [of gang association], [because] any issues of credibility were for the jury to decide"].)
In our judgment, in the face of such overwhelming evidence, introducing Detective Atkinson's testimony that Estrada committed a gang-related crime in 2005, did not have gang tattoos when he entered prison in 2008, was in good standing with the gang during prior prison terms, and his father used to be a member of a different gang was harmless beyond a reasonable doubt.
C. Sentencing
Estrada contends his sentence is improper because the trial court imposed and executed punishment on two counts for the same incident involving a single victim. The jury convicted Estrada of aggravated assault (§ 245, subd. (b); count 2) and committing a criminal threat (§ 422; count 3) for accosting AS, pointing a semiautomatic pistol in his face, and saying something like, "I'll blow your fucking head off." Estrada contends his sentence is unauthorized and, under section 654, the trial court was required to stay execution of the sentence on count 3—the less-punished offense.
The People do not address Estrada's judgment that the trial court was not authorized to punish him on both counts 2 and 3. Instead, they contend Estrada abandoned his right to appeal the sentence under section 654 by agreeing to a stipulated sentence, which he accepted in return for the People's agreement not to retry him for attempted murder, a count on which the jury hung 11 to 1 in favor of conviction. Estrada's response is simple: He says he did not abandon the issue because there was no stipulated sentence.
Under section 654, subdivision (a), "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." "'Errors in the applicability of section 654 are corrected on appeal regardless of whether the point was raised by objection in the trial court or assigned as error on appeal.' [Citation.] This is an exception to the general rule that only those claims properly raised and preserved by the parties are reviewable on appeal." (People v. Hester (2000) 22 Cal.4th 290, 294-295 (Hester).) It applies because "a court acts in excess of its jurisdiction and imposes an unauthorized sentence when it fails to stay execution of a sentence under section 654." (Id. at p. 295.)
However, the exception "is itself subject to an exception: Where the defendants have pleaded guilty in return for a specified sentence, appellate courts will not find error even though the trial court acted in excess of jurisdiction in reaching that figure, so long as the trial court did not lack fundamental jurisdiction. The rationale behind this policy is that defendants who have received the benefit of their bargain should not be allowed to trifle with the courts by attempting to better the bargain through the appellate process. [Citations.] While failure to object is not an implicit waiver of section 654 rights, acceptance of the plea bargain here was." (Hester, supra, 22 Cal.4th at p. 295.)
Consistent with these principles, California Rules of Court, rule 4.412(b) sets out the extent to which a defendant who has agreed to a specified term is estopped from complaining about such a sentence. Rule 4.412(b) provides, "By agreeing to a specified term in prison or county jail . . . a defendant who is sentenced to that term or a shorter one abandons any claim that a component of the sentence violates section 654's prohibition of double punishment, unless that claim is asserted at the time the agreement is recited on the record."
In this case, a jury convicted Estrada of seven of eight counts against him and hung 11 to 1 in favor of convicting him for attempted murder. After the jury delivered its verdict, Estrada's counsel and the prosecutor reached an agreement on a stipulated sentence. The prosecution offered to dismiss the attempted murder charge against Estrada if he would agree to a sentence of at least 77 years. Estrada agreed, and the parties took the stipulated sentence to the sentencing hearing.
At the hearing, the prosecutor said, "the People will make the promise to the defendant that upon a sentence of over 77 years, that the People will move to dismiss Count 1 of attempted murder." The prosecutor added, "But that being said, your Honor, when I make the motion to dismiss that count, the People's intention would be that if for some reason the defendant makes an appeal and his sentence is reduced, that the People's intent would be to refile the attempted murder [charge]," for which Estrada would face a maximum sentence of 15 years to life in prison.
Estrada's counsel informed the court that "The People had initially indicated that if [Estrada] was maxed out, that they would not prosecute him on the attempt murder . . . charge. [¶] We talked to the jurors after they hung up on that, and it turns out that it was 11 to 1 for guilty . . . [I]t is my opinion and my advice to my client that if he were to be retried, in all probability, he would be convicted and of course would end up with an increased sentence." Counsel advised Estrada accepting the proposed sentence in return for not being retried for attempted murder would be in his best interests, and indicated Estrada was willing to accept the sentence.
The trial court accepted the stipulated sentence. "[I]t is my understanding that counsel are stipulating to a sentence of 77 years and 4 months. Is that correct?" Counsel for both defense and prosecution agreed. The court proceeded to enumerate the sentences for individual counts. On count 2, the aggravated assault conviction, the court imposed a term, including enhancements, of seven years and three months. On count 3, the criminal threats conviction, the court imposed a consecutive term, including enhancements, of four years and eight months. Neither the court nor the parties raised the issue of whether section 654 required the court to stay execution of sentence on count 3. The probation report indicated section 654 did not apply because the assault and the threat were independent. The court then found the stipulated sentence to be reasonable.
Based on these facts, we conclude Estrada entered a stipulated sentence in return for the People's agreeing to dismiss the attempted murder charge and not retry him for that offense. As such, under both Hester and California Rules of Court, rule 4.412(b), Estrada has abandoned the right to appeal the execution of his sentence on count 3 because it should have been stayed under section 654.
Estrada does not challenge the legal principles on which we rely. Instead, he seizes on certain phrases in the transcript as showing he did not agree to a "specified term." He points to defense counsel's characterization of the agreement as "almost a stipulation regarding the sentencing" and the term called for as being "in the neighborhood of the 77 years with the understanding that Count 1 would then not be retried." (Italics added.) These stray comments do not indicate there was no stipulation or that the sentence was too indefinite to count as a specified term. As we recounted above, the trial court repeatedly characterized the agreement as being a stipulation and imposed the precise term to which the parties stated they agreed.
Estrada also contends on appeal there was no point at which he himself "expressly agree[d] to the total term of 77 years and 4 months." Again, we disagree. Estrada's counsel indicated Estrada agreed to that term before the hearing and represented that Estrada agreed with it in open court.
We conclude Estrada agreed to a specified term and thereby abandoned his challenge to his sentence or any component of it based on section 654.
D. Amendment to Gun Enhancement Statute
On October 11, 2017, the Governor signed Senate Bill No. 620, which amended section 12022.5, subdivision (c) to permit the trial courts to strike in the interest of justice firearm enhancements found true under that statute. Effective January 1, 2018, a sentencing court "may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section." (Stats. 2017, ch. 682, § 1.)
The bill also amends section 12022.53, subdivision (h), but the People did not allege an enhancement under that statute.
In supplemental briefing, Estrada argues the amended statute applies to him because his case is not yet final on appeal, citing as controlling authority In re Estrada (1965) 63 Cal.2d 740 and People v. Francis (1969) 71 Cal.2d 66. Estrada argues that because his case is not yet final, it must be remanded to the trial court for resentencing under the amended version of section 12022.5, subdivision (c), so the trial court can consider whether to strike one or both firearm enhancements. The People rightly concede the authorities Estrada cites compel us to remand in this case.
We ordered the parties to submit supplemental briefing on the effect of Senate Bill No. 620. In view of the People's concession remand is appropriate, we vacate the portion of our order requiring Estrada to submit a supplemental reply brief.
The People argue the issue is not ripe, but the contention lacks any merit. First, an issue is ripe when "the facts have sufficiently congealed to permit an intelligent and useful decision to be made." (Alameda County Land Use Assn. v. City of Hayward (1995) 38 Cal.App.4th 1716, 1722.) The facts have congealed; indeed, they have congealed so much that we are deciding the issue after the amendment became effective. --------
When the trial court receives the remittitur, Estrada will be entitled to the benefit of Senate Bill No. 620, which effectively reduces the potential sentence under section 12022.5 by making it discretionary rather than mandatory. (In re Estrada, supra, 63 Cal.2d at p. 742; People v. Francis, supra, 71 Cal.2d at p. 75.) Therefore, this court's remand will also permit the trial court to consider whether it should, in the interest of justice under section 1385, strike the enhancements for appellant's use of a firearm.
We express no opinion as to how the trial court should exercise its newly granted discretion on remand. We conclude only that it is the trial court's function to exercise this discretion in the first instance.
III
DISPOSITION
We remand the case for resentencing consistent with the views expressed in this opinion, but affirm the judgment in all other respects.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
SLOUGH
J. We concur: RAMIREZ
P. J. McKINSTER
J.