People v. Esparza CA2/2 ( 2021 )


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  • Filed 8/24/21 P. v. Esparza CA2/2
    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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    has not been certified for publication or ordered published for purposes of rule 8.1115.
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    SECOND APPELLATE DISTRICT
    DIVISION TWO
    THE PEOPLE,                                                  B305417
    Plaintiff and Respondent,                           (Los Angeles County
    Super. Ct. No. PA049963)
    v.
    DANIEL ESPARZA,
    Defendant and Appellant.
    APPEAL from orders of the Superior Court of Los Angeles
    County. Daniel B. Feldstern, Judge. Affirmed.
    Carlo Andreani, under appointment by the Court of Appeal,
    for Defendant and Appellant.
    Matthew Rodriquez, Acting Attorney General, Lance E.
    Winters, Chief Assistant Attorney General, Susan Sullivan
    Pithey, Assistant Attorney General, Amanda V. Lopez and John
    Yang, Deputy Attorneys General, for Plaintiff and Respondent.
    ______________________________
    In 2006, a jury convicted defendant and appellant Daniel
    Esparza of second degree murder (Pen. Code, § 187, subd. (a);
    count 1)1 and found true the allegations that he personally and
    intentionally discharged a firearm within the meaning of section
    12022.53, subdivisions (b) through (e) and that the offense was
    committed for the benefit of a criminal street gang within the
    meaning of section 186.22, subdivision (b)(1). (People v. Esparza
    (Sept. 5, 2007, B194326) [nonpub. opn.], at p. 2 (Esparza).) He
    was sentenced to 40 years to life in prison. (Ibid.) On direct
    appeal, we affirmed the judgment. (Id. at p. 11.)
    Defendant thereafter filed two postjudgment motions.
    First, on April 12, 2019, defendant filed a petition for
    resentencing pursuant to section 1170.95. The trial court denied
    that petition on the grounds that defendant was not convicted of
    second degree murder under either a theory of felony murder or
    the natural and probable consequences doctrine. The trial court
    also determined that defendant was the actual killer based upon
    the jury’s finding that he personally discharged the firearm
    causing death.
    Second, on November 18, 2019, defendant moved for a
    Franklin2 hearing in order to make a record of mitigating
    evidence relating to his youthfulness at the time of the crime.
    The trial court summarily denied defendant’s motion without
    prejudice on the grounds that it did not provide any offer of proof
    of relevant evidence, and found that it was doubtful that a
    Franklin hearing would “yield useful information for a future
    parole hearing.”
    1     All further statutory references are to the Penal Code
    unless otherwise indicated.
    2     People v. Franklin (2016) 
    63 Cal.4th 261
     (Franklin).
    2
    Defendant timely appealed both orders. Regarding the
    denial of his section 1170.95 petition, defendant argues that he
    was denied effective assistance of counsel at the resentencing
    hearing. Regarding the denial of defendant’s request for a
    Franklin hearing, defendant argues that the trial court
    erroneously denied his request.
    We are not convinced by defendant’s arguments.
    Accordingly, we affirm the trial court’s orders.
    FACTUAL BACKGROUND
    “At approximately 9:00 or 10:00 p.m. on May 10, 2002,
    Manuel Contreras (Contreras) went to a party held in the
    backyard of a residence in Pacoima. An announcement was made
    at approximately 1:00 a.m. that the party was over, and the
    guests proceeded to leave. As Contreras left with some friends,
    he saw 10 to 15 men who appeared to be gang members standing
    at the gate. Contreras and his friends were all wearing
    Los Angeles Dodger baseball caps. The group of gang members
    ‘hit up’ Contreras’s friends, and Contreras asked the men what
    the problem was. The gang members asked Contreras if he and
    his friends were from ‘San Fer,’ which was a gang in the
    San Fernando Valley. Contreras replied, ‘No, we don’t gang-
    bang.’ Members of the group called out ‘AGL,’ which stood for
    Astoria Garden Locos, another Valley gang.” (Esparza, supra,
    B194326, at p. 2.)
    As Contreras began to walk away, one of the gang members
    snatched Contreras’s baseball cap from his head. When one of
    the gang members asked Contreras if he wanted to come and get
    it, Contreras decided to forget it and go home. (Esparza, supra,
    B194326, at pp. 2–3.)
    As Contreras left, one of the gang members punched him
    from behind. A fight ensued. At one point, Luis Rodriguez
    3
    (Rodriguez) intervened for Contreras. Contreras then heard two
    to four gunshots. When the shooting stopped, Contreras got up
    and ran away. (Esparza, supra, B194326, at p. 3.)
    Rodriguez died from a gunshot wound to the abdomen.
    (Esparza, supra, B194326, at p. 3.) The fatal wound was caused
    by a copper-jacketed, lead-core bullet measuring nine millimeters
    in diameter. At the shooting scene, police recovered two
    .40-caliber spent cartridges across the street from where
    Rodriguez’s bloody clothing had been left. They also recovered
    two spent nine-millimeter cartridges at a spot 210 feet south of
    the .40-caliber cartridges. (Ibid.)
    During its investigation of the crime, police interviewed
    Orlando Chavez, a former AGL member who was at the party
    when the fighting began. “When he heard shots, he jumped over
    a wall. While crossing the street, he saw the gunman.” (Esparza,
    supra, B194326, at p. 4.) He identified defendant from a
    photographic lineup as the shooter, although at trial he recanted
    his prior identification. (Ibid.)
    “On June 3, 2002, defendant and Jesus Romero (Romero)
    were arrested in a car. In the center console, police found a
    weapon. In this June 2002 incident, defendant admitted in court
    that he personally used the gun. Detective [Ronald] King learned
    of defendant’s and Romero’s arrest and the fact that a gun was
    found in the car they occupied. Detective King requested that the
    gun be compared with the ballistic evidence recovered at
    Rodriguez’s shooting. The same gun was later admitted into
    evidence in the instant case.” (Esparza, supra, B194326, at p. 4.)
    “Starr Sachs (Sachs), a firearms examiner with the
    Los Angeles Police Department, identified the handgun recovered
    during defendant’s June 2002 arrest, as a semiautomatic Glock.
    4
    The Glock uses .40-caliber Smith and Wesson ammunition.
    Sachs testified that the .40-caliber cartridges whose cases were
    found at the scene were fired from the Glock. The bullet
    recovered from the victim was consistent with either a .40-caliber
    Smith and Wesson or a 10 millimeter. The bullet was not
    marked well enough to confirm or eliminate it as having been
    fired from the Glock. The Glock will not fire 10-millimeter
    cartridges, only .40 caliber ones, even though the two types have
    the same diameter. A smaller bullet, such as a nine millimeter,
    might fire from the Glock.” (Esparza, supra, B194326, at p. 4.)
    PROCEDURAL BACKGROUND
    I. Section 1170.95 Petition
    A. Defendant’s petition
    On April 12, 2019, defendant filed a section 1170.95
    petition requesting resentencing. He asserted, inter alia, that he
    was convicted of murder pursuant to the felony murder rule or
    the natural and probable consequences doctrine and that he could
    not now be convicted of murder because of changes made to
    sections 188 and 189. He did not check the box indicating that he
    was not the actual killer.
    B. The People’s opposition
    The People opposed the petition on the grounds that
    defendant was convicted of murder with express malice as the
    actual killer who personally used a firearm. In addition, the trial
    court’s instructions to the jury demonstrated that it had not been
    instructed with principles of aiding and abetting, natural and
    probable consequences, or felony murder.
    C. Defense counsel declines to file a reply brief
    Counsel was appointed to represent defendant. On
    January 24, 2020, defense counsel appeared in court, announced
    an office review of defendant’s case had been conducted, and
    5
    stated that counsel had elected not to file a reply to the People’s
    opposition based upon defendant’s ineligibility for relief as the
    actual shooter.
    D. Trial court order
    On February 25, 2020, the trial court denied defendant’s
    petition on the grounds that he had not been convicted under
    either a theory of felony murder or the natural and probable
    consequences doctrine. The trial court also relied upon the fact
    that defendant was the actual killer based upon the jury’s finding
    that he personally discharged the firearm causing death.
    II. Motion for a Franklin Hearing
    On November 18, 2019, defendant moved for a Franklin
    hearing in order to make a record of mitigating evidence relating
    to his youthfulness at the time of the crime. His supporting
    declaration indicated that he was 20 years old at the time of
    offense and was eligible for a youthful offender hearing in or
    around 2026.
    On January 30, 2020, the trial court summarily denied
    defendant’s motion. In its order, the trial court indicated that
    such motions “should contain an offer of proof, or the types of
    evidence that an offender believes to be relevant for his
    . . . motion, and . . . explain what, if any, alternative efforts the
    defendant has made to gather information pursuant to Penal
    Code § 3051(f),” which proffers were “particularly relevant and
    necessary in cases when substantial time has passed, as is [this]
    case here.” Thus, it denied the motion without prejudice “as it
    lacks any offer of proof of relevant evidence to justify a hearing
    and does not include what efforts, if any, the defendant has made
    to make his record pursuant to Penal Code § 3051(f).” It further
    noted that it was “doubtful that a Franklin hearing [would] yield
    useful information for any future parole hearing” “given the
    6
    defendant’s current age and the substantial time that has passed
    since the date of his offense[.]”)
    On March 9, 2020, defendant filed a notice of appeal from
    the order denying his motion for a Franklin hearing.
    DISCUSSION
    Defendant’s Section 1170.95 Petition
    I. Standard of Review
    We review the trial court’s order de novo. (See Martinez v.
    Brownco Construction Co. (2013) 
    56 Cal.4th 1014
    , 1018
    [application of law to undisputed facts]; A.S. v. Miller (2019) 
    34 Cal.App.5th 284
    , 290 [statutory interpretation].)
    II. Relevant law
    Section 1170.95 provides a mechanism whereby people
    “who believe they were convicted of murder for an act that no
    longer qualifies as murder following the crime’s redefinition in
    2019[] may seek vacatur of their murder conviction and
    resentencing by filing a petition in the trial court.” (People v.
    Drayton (2020) 
    47 Cal.App.5th 965
    , 973.)
    In order to obtain resentencing relief, the petitioner must
    proceed through section 1170.95’s separate steps. (People v.
    Lewis (July 26, 2021, S260598) ___ Cal.5th ___ [2021 Cal.LEXIS
    5258] (Lewis).) First, a defendant must file a facially sufficient
    section 1170.95 petition. The petitioner must aver that he is
    eligible for relief because (1) an accusatory pleading was filed
    against him allowing the prosecution to proceed under a theory of
    felony murder or murder under the natural and probable
    consequences doctrine; (2) he was convicted of first or second
    degree murder; and (3) he could not be convicted of murder as a
    result of the recent amendments to sections 188 and 189.
    (§ 1170.95, subds. (a)(1)-(3), (b)(1)(A).)
    7
    “Where the petition complies with [these] requirements,
    then the court proceeds to subdivision (c) to assess whether the
    petitioner has made ‘a prima facie showing’ for relief. [Citation.]”
    (Lewis, supra, ___ Cal.5th ___ [2021 Cal.LEXIS 5258], at p. *7.)
    The trial court may rely on the record of conviction in
    determining whether the prima facie showing has been made.
    (Id. at p. *29.) “‘[I]f the record, including the court’s own
    documents, “contain[s] facts refuting the allegations made in the
    petition,”’” then the trial court must dismiss or deny the petition.
    (Lewis, supra, at p. *31; see also People v. Verdugo (2020) 
    44 Cal.App.5th 320
    , 328–333 (Verdugo), review granted Mar. 18,
    2020, S260493; People v. Cornelius (2020) 
    44 Cal.App.5th 54
    , 57–
    58 (Cornelius), review granted Mar. 18, 2020, S260410.) As is
    relevant to the issues in this appeal, a disqualifying factor
    includes a petitioner that the jury found was the actual killer.
    (Cornelius, supra, at p. 58; People v. Edwards (2020) 
    48 Cal.App.5th 666
    , 674–675 (Edwards), review granted July 8,
    2020, S262481; People v. Tarkington (2020) 
    49 Cal.App.5th 892
    ,
    896 (Tarkington), review granted Aug. 12, 2020, S263219.)
    Only if the trial court determines that the petitioner has
    made a prima facie showing of entitlement to relief must it issue
    an order to show cause. (§ 1170.95, subd. (c).)
    III. The trial court properly denied defendant’s petition for
    resentencing
    A. Defendant was ineligible for resentencing relief
    The trial court properly denied defendant’s petition for
    resentencing because he was ineligible for the relief as the actual
    shooter. His record of conviction shows that the only theory of
    liability for murder on which the jury was instructed was second
    degree murder with malice aforethought pursuant to CALCRIM
    8
    No. 520. The jury was not instructed on either the felony murder
    or natural and probable consequences doctrine.
    Furthermore, the jury found true the allegation that
    defendant personally and intentionally discharged a firearm
    causing great bodily injury or death under section 12022.53,
    subdivision (d). While a true finding on this enhancement, by
    itself, may not necessarily indicate that the defendant was the
    actual killer, it does here given that there was no theory of
    vicarious liability offered that would have rendered defendant
    eligible for relief. (See People v. Offley (2020) 
    48 Cal.App.5th 588
    ,
    594, 598–599.)
    And, in our prior opinion, we specifically held that
    “Chavez’s identification of defendant as the shooter was sufficient
    substantial evidence to sustain the conviction.” (Esparza, supra,
    B194326, at p. 8.)
    Because the record of conviction establishes that defendant
    was ineligible for relief as a matter of law, the trial court properly
    denied his petition for resentencing. (See, e.g., Verdugo, supra,
    44 Cal.App.5th at p. 329; Edwards, supra, 48 Cal.App.5th at
    pp. 674–675; Tarkington, supra, 49 Cal.App.5th at pp. 896–898.)
    B. Defendant did not demonstrate that he was denied
    effective assistance of counsel
    Regardless, defendant has not demonstrated that he
    received ineffective assistance of counsel. To establish ineffective
    assistance of counsel, “‘“a defendant must show that (1) counsel’s
    representation fell below an objective standard of reasonableness
    under prevailing professional norms, and (2) counsel’s deficient
    performance was prejudicial, i.e., there is a reasonable
    probability that, but for counsel’s failings, the result would have
    been more favorable to the defendant. [Citation.]”’” (People v.
    9
    Rices (2017) 
    4 Cal.5th 49
    , 80.) “If a claim of ineffective assistance
    of counsel can be determined on the ground of lack of prejudice, a
    court need not decide whether counsel’s performance was
    deficient.” (In re Crew (2011) 
    52 Cal.4th 126
    , 150; see Strickland
    v. Washington (1984) 
    466 U.S. 668
    , 697 [“[i]f it is easier to dispose
    of an ineffectiveness claim on the ground of lack of sufficient
    prejudice, which we expect will often be so, that course should be
    followed”].)
    Here, defendant cannot establish either that defense
    counsel’s performance was deficient or that he suffered any
    prejudice as a result of the alleged poor performance in that no
    reply brief was filed. Defense counsel was not required to file a
    reply brief (§ 1170.95, subd. (c)), let alone one that would have
    advanced a meritless argument simply to avoid being called
    ineffective by appellate counsel (People v. Cunningham (2001) 
    25 Cal.4th 926
    , 1038). After all, as set forth above, the record of
    conviction indisputably shows that the People prosecuted
    defendant as the actual killer, and he was convicted as such.3
    Defendant’s Motion for a Franklin Hearing
    I. Relevant law
    “[T]he California Legislature passed Senate Bill No. 260
    (2013-2014 Reg. Sess.), which became effective January 1, 2014,
    and enacted sections 3051, 3046, subdivision (c), and 4801,
    subdivision (c), to provide a parole eligibility mechanism for
    juvenile offenders.” (People v. Perez (2016) 
    3 Cal.App.5th 612
    ,
    618.) “In October 2015, the Legislature amended section 3051,
    and effective January 1, 2016, anyone who committed his or her
    3      It follows that counsel’s concession that defendant was the
    actual shooter does not amount to an argument against his client.
    10
    controlling offense before reaching 23 years of age [became]
    entitled to a youth offender parole hearing. (§ 3051, subd. (a)(1),
    amended by Stats. 2015, ch. 471, § 1.)” (People v. Perez, supra, at
    p. 618.) Under the revised section 3051, the Board of Parole
    Hearings “shall complete all youth offender parole hearings for
    individuals who were sentenced to indeterminate life terms and
    who [became] entitled to have their parole suitability considered
    at a youth offender parole hearing on January 1, 2016, by July 1,
    2017.” (§ 3051, subd. (i)(2)(A).)
    In Franklin, supra, 
    63 Cal.4th 261
    , a 16-year-old defendant
    shot and killed another teenager and was eventually convicted
    and sentenced to life in prison with the possibility of parole in 50
    years. (Franklin, supra, at p. 268.) On appeal, he challenged his
    sentence as a violation of the Eighth Amendment. While his
    appeal was pending, the Legislature enacted sections 3051 and
    4801 to provide a parole hearing during the 25th year of
    incarceration for certain juveniles sentenced as adults. Because
    the defendant in Franklin was entitled to such a hearing, the
    Supreme Court determined that his Eighth Amendment
    challenge was moot. (Franklin, supra, at pp. 276–277.) The
    Franklin court remanded “the matter to the trial court for a
    determination of whether [the defendant] was afforded sufficient
    opportunity to make a record of information relevant to his
    eventual youth offender parole hearing.” (Id. at p. 284; see also
    People v. Rodriguez (2018) 
    4 Cal.5th 1123
    , 1131–1132 [remanding
    the matter to allow the offender to make a thorough record of
    factors relevant to his eventual youth offender parole hearing].)
    Thereafter, our Supreme Court in In re Cook was tasked
    with determining “whether a sentenced prisoner whose conviction
    is final can seek the remedy of evidence preservation and, if so,
    11
    by what means.” (In re Cook (2019) 
    7 Cal.5th 439
    , 446–447
    (Cook).) It held that the proper avenue to seek a Franklin
    proceeding is through section 1203.01, which “provides that,
    postjudgment, the trial court may generate, collect, and transmit
    information about the defendant and the crime to the
    Department of Corrections and Rehabilitation.” (Cook, supra, at
    p. 447.)
    Thus, “consistent with Franklin and the court’s inherent
    authority, the offender shall have the opportunity to ‘place on the
    record any documents, evaluations, or testimony (subject to cross-
    examination) that may be relevant at his eventual youth offender
    parole hearing.’” (Cook, supra, 7 Cal.5th at p. 458.)
    That said, “[a]lthough Franklin mandates an opportunity
    for evidence preservation, the 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.’
    [Citation.] The court may, for example, require an offer of proof
    regarding the evidence the offender seeks to present, so that it
    can determine whether such evidence is relevant to youth-related
    factors and meaningfully adds to the already available record.”
    (Cook, supra, at p. 459.) “Finally, Franklin emphasized that the
    purpose of the proceeding was to allow the offender to assemble
    evidence ‘at or near the time of the juvenile’s offense rather than
    decades later when memories have faded, records may have been
    lost or destroyed, or family or community members may have
    relocated or passed away.’ [Citation.]” (Cook, supra, at p. 459.)
    Thus, trial courts “may” consider whether a Franklin proceeding
    is unnecessary because it will not produce “fruitful evidence.”
    (Cook, supra, at p. 459.)
    12
    II. Analysis
    Applying these legal principles, we conclude that the trial
    court did not err by denying defendant’s motion without
    prejudice. By the time of defendant’s application for a Franklin
    hearing, defendant had been incarcerated for more than 17 years
    (since his arrest in 2002). The likelihood of being able to find
    relevant materials relating to his youth is in doubt. And, his
    bare-bones request for a Franklin hearing did not so much as
    hint as to what kind of information he could gather and enter
    into the record during the hearing. As Cook allows the trial court
    to demand an offer of proof (Cook, supra, 7 Cal.4th at p. 459), the
    denial without prejudice4 against the filing of a new request that
    included such an offer of proof was certainly within the trial
    court’s authority. (See, e.g., Farber v. Bay View Terrace
    Homeowners Assn. (2006) 
    141 Cal.App.4th 1007
    , 1015 [“Denial of
    a motion without prejudice impliedly invites the moving party to
    renew the motion at a later date, when he can correct the
    deficiency that led to the denial”].)
    4     In neither his opening brief nor his reply brief does
    defendant address the fact that the motion was denied without
    prejudice.
    13
    DISPOSITION
    The trial court’s orders denying defendant’s section 1170.95
    petition and his request for a Franklin hearing are affirmed.
    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
    _____________________, Acting P. J.
    ASHMANN-GERST
    We concur:
    ________________________, J.
    CHAVEZ
    ________________________, J.
    HOFFSTADT
    14
    

Document Info

Docket Number: B305417

Filed Date: 8/24/2021

Precedential Status: Non-Precedential

Modified Date: 8/24/2021