People v. Llamas-Escalante CA6 ( 2022 )

Filed 6/24/22 P. v. Llamas-Escalante CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H049361
(Monterey County
Plaintiff and Respondent, Super. Ct. No. 19CR008559)
v.
LUIS LLAMAS-ESCALANTE,
Defendant and Appellant.
A jury convicted defendant Luis Llamas-Escalante (Escalante) of first-degree
murder, two counts of assault with a firearm, and shooting at an inhabited dwelling.1 The
trial court sentenced Escalante to 50 years to life in prison, consecutive to a term of 10
years four months, and imposed restitution fines and certain assessments.
On appeal, Escalante raises two claims of error. He contends the punishment
imposed for his conviction for shooting at an inhabited dwelling must be stayed under
Penal Code section 654, and his trial counsel provided ineffective assistance by failing to
object to the imposition of a $5,000 restitution fine and two assessments totaling $280.
For the reasons explained below, we affirm the judgment.
The operative charging document in this matter stated Escalante’s full name as
1
“Luis Enrique Llamas-Escalante.” At trial, defense counsel explained that Escalante’s
full name is “Luis Enrique Escalante Llamas,” and he “goes by ‘Escalante.’ ”
I. FACTS AND PROCEDURAL BACKGROUND
A. Procedural History
On April 26, 2021, the Monterey County District Attorney filed a second amended
information (information) charging Escalante with the willful, deliberate, and
premeditated murder of Santos Emilio Barriga (Pen. Code, §§ 187, subd. (a), 189;2 count
1), four counts of assault with a firearm (§ 245, subd. (a)(2); counts 2–5), and shooting at
an inhabited dwelling (§ 246; count 6). Counts 2 through 5 each alleged a different
victim, Veronica T., Peyton H., Rico T., and Antonella T., respectively.
As to count 1, the information further alleged that Escalante personally used a
handgun (§ 12022.53, subd. (b)), personally and intentionally discharged a handgun
(§ 12022.53, subd. (c)), and personally and intentionally discharged a handgun causing
great bodily injury and/or death to Barriga (§ 12022.53, subd. (d)). As to counts 2
through 5, the information alleged that Escalante personally used a handgun (§ 12022.5,
subd. (a)). Lastly, as to count 6, the information alleged that Escalante personally and
intentionally discharged a handgun causing great bodily injury and/or death to Barriga (§
12022.53, subd. (d)).
In May 2021, the jury convicted Escalante as charged in count 1 (first degree
murder), counts 2 and 3 (assault with a firearm on Veronica and Peyton, respectively),
and count 6 (shooting at an inhabited dwelling). In addition, the jury found true the
firearm enhancement allegations attached to those counts. The jury acquitted Escalante
on counts 4 and 5 (assault with a firearm on Rico and Antonella, respectively).
In July 2021, the trial court sentenced Escalante to an indeterminate term of 50
years to life, consecutive to a determinate term of 10 years and four months. Specifically,
for count 1, the court imposed a 25-years-to-life term, consecutive to a 25-years-to-life
term for one of the three attendant firearm enhancements (§ 12022.53, subd. (d)). For the
2
Unspecified statutory references are to the Penal Code.
2
other two firearm enhancements attached to count 1 (§ 12022.53, subd. (b), (c)), the court
imposed terms of 10 years and 20 years, respectively, but ordered both those terms stayed
(§ 654). For count 2, the court imposed the upper term of four years, plus four years for
the attached firearm enhancement. For count 3, the court imposed a consecutive one-year
term (one-third the midterm), plus a 16-month term for the attached firearm
enhancement. For count 6, the court imposed a concurrent upper term of seven years.
Additionally, the trial court imposed a $5,000 restitution fine (§ 1202.4, subd. (b)),
a suspended $5,000 parole revocation restitution fine (§ 1202.45), a $160 court
operations assessment (§ 1465.8, subd. (a)(1)), a $120 court facilities assessment (Gov.
Code, § 70373), and victim restitution (§ 1202.4, subd. (f)).
Escalante timely appealed.
B. Evidence Presented at Trial
In July 2019,3 Santos Barriga and his spouse Veronica T. were living in a house in
Salinas with Veronica’s four children, Kobe, Peyton, Rico, and Antonella.4 Destiny
Lopez also lived there. Lopez was Veronica’s cousin’s ex-girlfriend and a close friend of
Veronica’s. Lopez and Escalante were involved romantically and had a child together.
Escalante moved into Barriga and Veronica’s house and stayed in a bedroom with Lopez.
Escalante and Lopez understood that they would pay rent of $300 per month to Barriga
and Veronica. Barriga and Escalante got along well and were friends.
At one point in July, Escalante went to San Jose for a week to work in
construction. He left some of his clothes and shoes at the house, and Veronica expected
him to return on August 2. However, during the week that he was away, Escalante told
Lopez that he was going to remain in San Jose and asked her to retrieve his clothing and
3
Unless otherwise indicated, all dates were in 2019.
4
Kobe and Peyton were teenagers; Rico and Antonella were around six and five
years old, respectively.
3
shoes. Lopez and Escalante owed some rent, and Barriga would not let Lopez take
Escalante’s belongings without paying it.
In the late afternoon of August 1, Lopez went to the house because Escalante had
again asked her to get his belongings. Lopez spoke to Barriga, who again did not let her
collect the belongings. Lopez left, called Escalante from Watsonville, and told him she
had been unsuccessful. He yelled at her, telling her to get the “fucking clothes.” Before
hanging up on Lopez he yelled, “ ‘bet.’ ” Lopez took this to mean that Escalante was
“going to go and get them.”
Later that day, Escalante called Lopez from outside her location in Watsonville,
apparently having tracked her there through an application on her cell phone. Escalante
had three friends with him. Lopez, Escalante, and his friends drove from Watsonville to
Barriga and Veronica’s house in Salinas. Escalante said “That he was just getting his
clothes.”
Around 10:30 p.m. on August 1, Veronica was in her living room, lying on the
couch with Barriga watching a movie. Rico and Antonella also were on the couch “in
their blankets,” and Peyton was inside the house. Lopez entered the house and said she
had brought Escalante there to fight Barriga because she did not want to be “in the middle
of it.”
Veronica and Barriga moved from the couch to their front doorway, and Veronica
saw Escalante outside on the walkway to the house. Veronica’s teenage son Peyton also
went to the front door. Escalante yelled to Lopez, “ ‘Get my stuff, stupid bitch. Get my
stuff, bitch.’ ” Barriga told Escalante not to speak to Lopez that way. Escalante
challenged Barriga to a fight, calling him a “pussy.” Lopez told Veronica and Barriga to
give Escalante the clothes, but Escalante yelled at Lopez, “ ‘Get the fuck outside,
bitch.’ ” Escalante then pulled out a gun from his waist area and asked for his
belongings.
4
Barriga pushed Veronica and Peyton toward the interior of the house and started to
close the front door. When Barriga had his back turned, Escalante moved one or two feet
closer to Barriga and started firing from about five feet away, directly inside the house.
Escalante fired several shots and hit Barriga in the back. As Escalante fired, Veronica
yelled to him about her children. Veronica, Peyton, and Lopez testified that Rico and
Antonella were on the couch (which was in line with the front doorway) as the shots were
fired.5 After Escalante finished shooting, he ran, pushed Lopez into the car, and jumped
in. The car sped off.
As the group drove away, Lopez hit Escalante and said, “ ‘What the hell, the
kids.’ ” Escalante pointed his gun at Lopez and replied, “ ‘Shut the fuck up, bitch. Give
me your phone.’ ” He then broke Lopez’s phone and threw it out of the car window.
Veronica called 911 and reported that Escalante had shot her husband. Barriga lay
near the front doorway. When a police officer arrived and asked Barriga who had shot
him, Barriga refused to say, replying “ ‘Nobody shot me.’ ” Barriga died later at a
hospital from a gunshot wound to the back. The bullet that entered Barriga’s back did
not exit his body. In addition, police found two bullet impacts in the front-door frame, a
bullet/projectile in the living room, and bullet holes in a punching bag (that had been next
to Peyton during the firing) and a blanket in the living room.
After the shooting, Escalante, his friends, and Lopez drove to San Jose. There,
Escalante told Lopez to get into a Volvo parked on the side of a street. Escalante had
borrowed the Volvo from a construction co-worker earlier on the day of the crime
(August 1) and returned it to the coworker early on the morning of August 2. According
to the coworker, Escalante seemed nervous when he returned the car. Later that day, the
coworker again lent the Volvo to Escalante, but he never returned it.
5
Peyton, however, told police immediately following the shooting that he had
taken Rico and Antonella to a back room once Escalante started firing.
5
On August 4, at around 5:00 a.m., a San Jose police officer saw a Volvo drive
through a stop sign while speeding. The car made a sharp turn and then crashed into two
parked cars. Lopez was driving the car, and Escalante was in the front passenger’s seat.
Escalante exited the car and ran away from the police. An officer chased Escalante and
took him into custody.
Cell phone records placed Escalante’s phone near the house in Salinas around the
time Barriga was shot.
Escalante presented no witnesses in his defense.
II. DISCUSSION
A. Section 654
In his first claim of error, Escalante contends the trial court erred by failing to stay
the punishment on count 6 (shooting at an inhabited dwelling) because Escalante’s only
intent in firing his gun was to kill Barriga and assault Veronica and Peyton. The
Attorney General counters that the multiple victim exception to section 654 permits the
unstayed punishment imposed on count 6.
1. Background
In his sentencing brief, Escalante argued that the punishment for counts 2, 3, and 6
should be stayed pursuant to section 654. He asserted “the prosecution succeeded on its
theory that [he] went to the home of Santos Barriga with the intent to kill him.” He
further asserted that his assault with a firearm convictions (counts 2 & 3) “were premised
only on [Veronica’s and Peyton’s] presence in the residence where the shooting occurred,
not on the theory that [he] harbored any specific intent to shoot them” and his shooting at
an inhabited dwelling conviction (count 6) likewise “was not premised on any particular
specific intent to shoot at the dwelling, but was only part of his single intent to kill Santos
Barriga.” Escalante argued that his “conduct involved only a single act of shooting and
then fleeing— it was not a scenario where multiple physical acts occurred over a lengthy
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period of time.” Alternatively, Escalante argued that the punishments for counts 2 and 3
should be stayed “as [section] 654 to count six.”
In response, the prosecutor invoked the multiple victim exception to section 654.
The prosecutor asserted that “the existence of two additional victims [i.e., Rico and
Antonella] inside the house support[s] the application of the multiple victim exception to
the charge of shooting at the inhabited dwelling.” In addition, the prosecutor requested a
consecutive sentence on count 6, arguing “[t]he fact that Mr. Escalante chose to fire the
gun multiple times with two little children inside the house warrants consecutive
sentencing . . . . Instead of shooting once at his target, he decided to fire the gun at least
four times. Each trigger pull signifies an increased risk to the children and constitutes a
separate act of violence.”
At the sentencing hearing, the trial court decided to impose consecutive
determinate terms on counts 2 and 3 and “did not find [section] 654 applied due to these
being violent felonies, and the victims being different people.” Regarding the concurrent
determinate term imposed on count 6, the court explained that “[b]ecause there were the
individuals[,] victims inside the house, being the young children[, section] 654 wouldn’t
be appropriate.”
2. Legal Principles
“Section 654 precludes multiple punishments for a single act or indivisible course
of conduct.”6 (People v. Assad (2010) 189 Cal.App.4th 187, 200 (Assad).) Even
6
Current section 654, subdivision (a), provides in relevant part: “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.” (§ 654, subd. (a).) Our analysis of the
underlying dispute here concerning the applicability of section 654 is not affected by a
recent legislative amendment to section 654 that grants the trial court discretion to select
which term of imprisonment to impose (as opposed to mandating imposition of the
longest potential term of imprisonment, as was required by the former law). (See Stats.
2021, ch. 441, § 1 [Assembly Bill No. 518 (2021-2022 Reg. Sess.)].)
7
concurrent sentences on convictions subject to section 654 are prohibited; the sentence on
one of the two applicable convictions must be imposed and then stayed. (People v.
Deloza (1998) 18 Cal.4th 585, 591–592.) “[T]he purpose of section 654 ‘is to insure that
a defendant’s punishment will be commensurate with his culpability.’ ” (People v.
Latimer (1993) 5 Cal.4th 1203, 1211.)
Application of section 654 “requires a two-step inquiry, because the statutory
reference to an ‘act or omission’ may include not only a discrete physical act but also a
course of conduct encompassing several acts pursued with a single objective.” (People v.
Corpening (2016) 2 Cal.5th 307, 311.) Only if the case involves more than one act does
a court consider whether the case involves a course of conduct. (Ibid.) “At step one,
courts examine the facts of the case to determine whether multiple convictions are based
upon a single physical act.” (Id. at p. 312.) If the convictions involve more than one act,
the court reaches “step two of the section 654 analysis: whether the [course of conduct]
involved multiple intents and objectives.” (Id. at p. 316.) At step two, whether crimes
arise from an indivisible course of conduct turns on the perpetrator’s intent and objective.
(People v. Harrison (1989) 48 Cal.3d 321, 335 (Harrison).) “If all of the offenses were
incident to one objective, the defendant may be punished for any one of such offenses but
not for more than one.” (Neal v. State of California (1960) 55 Cal.2d 11, 19, overruled in
part on another ground in People v. Correa (2012) 54 Cal.4th 331, 341 (Correa).)
There is, however, a multiple victim exception to section 654. The California
Supreme Court has “long held that ‘the limitations of section 654 do not apply to crimes
of violence against multiple victims.’ ” (People v. Oates (2004) 32 Cal.4th 1048, 1063.)
“Under this exception, ‘even though a defendant entertains but a single principal
objective during an indivisible course of conduct, he may be convicted and punished for
each crime of violence committed against a different victim.’ [Citations.] The reason for
the multiple victim exception is that ‘when a defendant “ ‘commits an act of violence
with the intent to harm more than one person or by means likely to cause harm to several
8
persons,’ his greater culpability precludes application of section 654.” ’ ” (People v.
Garcia (1995) 32 Cal.App.4th 1756, 1781 (Garcia).) The multiple victim exception
“permits one unstayed sentence per victim of all the violent crimes the defendant
commits incidental to a single criminal intent.” (Id. at p. 1784.) Murder, assault with a
firearm, and shooting at an inhabited dwelling are crimes of violence for purposes of this
exception to section 654. (See People v. Anderson (1990) 221 Cal.App.3d 331, 338–339
(Anderson); People v. Cruz (1995) 38 Cal.App.4th 427, 434 (Cruz); People v. Felix
(2009) 172 Cal.App.4th 1618, 1630–1631 (Felix); see also Oates, at p. 1063.)
Whether a defendant harbored a single intent—and thus a single objective—is a
factual question; the applicability of section 654 to settled facts is a question of law.
(Harrison, supra, 48 Cal.3d at p. 335.) When interpreting the scope and meaning of the
multiple victim exception, we apply a de novo standard of review. (See People v. Perez
(1979) 23 Cal.3d 545, 552, fn. 5.) Regarding whether the facts establish there were
multiple victims of the crimes of violence, we review such finding for substantial
evidence. (See People v. Centers (1999) 73 Cal.App.4th 84, 101.) An appellate court
will sustain a trial court’s implied factual determination in the application of section 654
if supported by substantial evidence. (People v. Osband (1996) 13 Cal.4th 622, 730–
731.)
3. Analysis
Escalante contends that his intent in firing three shots at Barriga was to kill him
and, as for the bullet found in the living room, his “only intent as to that shot was to
assault [Veronica] and Peyton.” Escalante asserts further that his conviction for shooting
at an inhabited dwelling “was merely incidental to this one objective.”
The Attorney General does not argue that Escalante acted with more than one
intent and objective during the course of his crime. Instead, the Attorney General asserts
that the trial court properly imposed an unstayed punishment for count 6 pursuant to the
multiple victim exception. Specifically, the Attorney General contends that although the
9
jury acquitted Escalante of assaulting Rico and Antonella (counts 4 & 5), “substantial
evidence supports the trial court’s conclusion that the children were victimized by
[Escalante]’s Count 6 offense of shooting into the residence.”
In his reply brief, Escalante retorts that the multiple victim exception does not
apply because Rico and Antonella were named as victims in the information. Escalante
argues that the fact he “was acquitted of assaulting Rico and Antonella is irrelevant. The
relevant question, as demonstrated in Felix and Anderson, is whether Rico and Antonella
were charged victims in other counts. [Citations.] Because they were, the multiple
victim exception does not apply to the shooting at an inhabited dwelling count.”
Assuming for argument’s sake that Escalante harbored a single intent and
objective when he fired his gun at Barriga, Veronica, Peyton, and their house, we are not
persuaded that because Rico and Antonella were named as victims in other counts in the
information, neither of them can be considered a different victim for purposes of the
multiple victim exception. Generally, “the application of section 654 does not depend on
the allegations of the charging instrument, but on what was proven at trial.” (Assad,
supra, 189 Cal.App.4th at p. 200.) Furthermore, absent “some circumstance
‘foreclosing’ its sentencing discretion . . . a trial court may base its decision under section
654 on any of the facts that are in evidence at trial, without regard to the
verdicts. . . . After all, a court may even rely on facts underlying verdicts of acquittal in
making sentencing choices.” (People v. McCoy (2012) 208 Cal.App.4th 1333, 1340,
italics omitted.)
Escalante’s reliance on Felix and Anderson to support his contention is misplaced
because those cases do not address the circumstance present in this case. In Felix and
Anderson, the appellate courts concluded that the multiple victim exception applied to the
offense of shooting into a dwelling where a victim who was not named in another count
was present in the dwelling. (Felix, supra, 172 Cal.App.4th at p. 1631; Anderson, supra,
221 Cal.App.3d at pp. 334, 338–339.) That conclusion, however, does not support
10
Escalante’s different contention—not addressed in those cases—that the mere naming of
a victim in a count of the information on which the defendant was acquitted precludes
application of the multiple victim exception when sentencing on a count against that
victim for which the defendant stands convicted.
Section 654 does not turn simply on whether a victim was named in some other
count of the charging instrument. Rather, the crucial factor of the analysis is whether the
violent offenses for which the defendant is being punished involve at least one different
victim. (See Garcia, supra, 32 Cal.App.4th at pp. 1784–1785; Cruz, supra, 38
Cal.App.4th at p. 434.)
Here, the trial court’s finding of multiple victims for the relevant violent offenses,
including count 6, is supported by substantial evidence. Indeed, Escalante does not argue
otherwise. Veronica, Peyton, and Lopez testified about Rico and Antonella being on the
couch as Escalante fired the shots. Additionally, Veronica testified that she yelled at
Escalante while he was shooting, saying “ ‘Enrique, my kids. Enrique, my kids.’ ” The
evidence thus proved there were people who were victimized by Escalante’s shooting
into the dwelling who were not victims in any other crime for which Escalante was
convicted and punished.
Section 654 calibrates punishment to the defendant’s culpability. (Correa, supra,
54 Cal.4th at p. 341.) Rico’s and Antonella’s presence in the house as Escalante fired his
gun at the dwelling renders Escalante more culpable and permits multiple punishment for
each of the violent crimes for which he was ultimately convicted. We conclude the trial
court did not err by imposing an unstayed term of imprisonment on Escalante for
shooting at an inhabited dwelling.
B. Ineffective Assistance of Counsel
Relying principally on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas)
and People v. Cowan (2020) 47 Cal.App.5th 32, review granted June 17, 2020, S261952
(Cowan), Escalante contends that his trial counsel was prejudicially ineffective for failing
11
to object to the trial court’s imposition of a $5,000 restitution fine (§ 1202.4, subd. (b)),
$160 court operations assessment (§ 1465.8, subd. (a)(1)), and $120 court facilities
assessment (Gov. Code, § 70373).7
The Attorney General counters that Escalante forfeited any claim that imposition
of the restitution fine and assessments violated his rights to due process and equal
protection and against excessive fines.8 Further, the Attorney General contends that
Escalante has not demonstrated that his trial counsel’s failure to object or request an
ability-to-pay hearing amounts to deficient performance.
1. Analysis
“In January 2019, Dueñas held that ‘due process of law requires [a] trial court
to . . . ascertain a defendant’s present ability to pay before it imposes’ (1) ‘court facilities
and court operations assessments’ (under Pen. Code, § 1465.8 and Gov. Code, § 70373,
respectively), or (2) a restitution fine (under Pen. Code, § 1202.4). (Dueñas, supra, 30
Cal.App.5th at p. 1164, italics added; see id. at pp. 1167, 1172; see also, id. at p. 1172
[restitution fine imposed without an ability-to-pay hearing must be stayed until such a
hearing is conducted].)”9 (People v. Hicks (2019) 40 Cal.App.5th 320, 325, review
granted Nov. 26, 2019, S258946 (Hicks).)
7
Escalante was represented by two attorneys at his trial and sentencing. We refer
to the attorneys collectively using the singular terms “trial counsel” and “counsel.”
8
We note that Escalante makes no argument against forfeiture in this case.
Instead, he asserts only a claim of ineffective assistance of counsel based on his trial
counsel’s failure to object despite having information illustrating his indigency.
9
Panels of this court and other Courts of Appeal have reached differing
conclusions on whether Dueñas was correctly decided, and the issue is pending before
the California Supreme Court. (See, e.g., People v. Kopp (2019) 38 Cal.App.5th 47,
review granted Nov. 13, 2019, S257844 (Kopp); People v. Aviles (2019) 39 Cal.App.5th
1055, 1067 (Aviles) [concluding that Dueñas was wrongly decided and its “analysis is
‘fundamentally flawed in that general “fairness” grounds of due process and/or equal
protection principles do not afford a defendant a preassessment ability-to-pay hearing
before a trial court imposes fines and fees on him or her.’ ”]; Hicks, supra, 40
Cal.App.5th at p. 325, review granted; People v. Adams (2020) 44 Cal.App.5th 828, 831–
12
Similarly, in Cowan, the Court of Appeal concluded that “[b]ecause ability to pay
is an element of the excessive fines calculus under both the federal and state
Constitutions,” “a sentencing court may not impose court operations or facilities
assessments or restitution fines without giving the defendant, on request, an opportunity
to present evidence and argument why such monetary exactions exceed his ability to
pay.” (Cowan, supra, 47 Cal.App.5th at p. 48 [review granted and the matter deferred
pending consideration and disposition of a related issue in Kopp, supra, 38 Cal.App.5th
47, review granted.)
“To make out a claim that counsel rendered constitutionally ineffective assistance,
‘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.’ ” (People v. Hoyt (2020) 8 Cal.5th 892, 958; see also Strickland v.
Washington (1984) 466 U.S. 668, 687.) We can reject an ineffective assistance of
counsel claim if the defendant fails to establish either element of the Strickland standard.
(See Strickland, at p. 687; People v. Kirkpatrick (1994) 7 Cal.4th 988, 1008, disapproved
on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
“On direct appeal, a conviction will be reversed for ineffective assistance only if
(1) the record affirmatively discloses counsel had no rational tactical purpose for the
challenged act or omission, (2) counsel was asked for a reason and failed to provide one,
or (3) there simply could be no satisfactory explanation. All other claims of ineffective
832 [concluding that “Dueñas was wrongly decided”]; People v. Petri (2020) 45
Cal.App.5th 82, 90 [finding that Dueñas was not “persuasive”].) For the reasons stated
post regarding ineffective assistance of counsel, we need not address the merits of
Dueñas in this case.
13
assistance are more appropriately resolved in a habeas corpus proceeding.” (People v.
Mai (2013) 57 Cal.4th 986, 1009.)
Here, the record does not disclose why Escalante’s trial counsel failed to object to
the $5,000 restitution fine, the $160 court operations assessment, or the $120 court
facilities assessment or request a hearing on Escalante’s ability to pay those amounts.10
There is no indication that trial counsel was asked for a reason for the inaction and failed
to provide one. Moreover, we cannot say there could be no satisfactory explanation for
trial counsel’s inaction regarding the restitution fine and assessments. Escalante was 29
years old in July 2021, when he was sentenced to 50 years to life in prison plus 10 years
four months. According to the trial evidence and probation report, at the time of his
arrest in August 2019, Escalante had been working as a union journeyman construction
worker for four years and had previously held other construction jobs.
Given Escalante’s employment history, trial counsel could have reasonably
concluded that Escalante had an ability to pay at least some of the aggregate $5,280 with
saved earnings and/or other benefits he might have accrued while working as a union
construction worker. That Escalante did not have enough money to employ defense
counsel for trial does not mean he had no assets at all. (See § 859 [“the court shall assign
counsel to defend” a defendant if the defendant “is unable to employ counsel”]; Gov.
Code, § 27706, subd. (a); see also In re Smiley (1967) 66 Cal.2d 606, 620.)
Furthermore, counsel could have reasonably considered Escalante’s ability to earn
wages in prison as another reason for not objecting or requesting an ability-to-pay
hearing. (See Aviles, supra, 39 Cal.App.5th at pp. 1062, 1076–1077 [concluding that a
defendant sentenced to a prison term of 82 years to life had the ability to pay $10,600 in
restitution fines, $160 in court operations assessments, and $120 in court facilities
10
We note that the probation officer’s report recommended that Escalante be
ordered to pay a restitution fine of $10,000, but the trial court ultimately chose to impose
one-half that amount.
14
assessments from either prison wages or monetary gifts from family and friends during
his lengthy prison sentence]; see also People v. Jones (2019) 36 Cal.App.5th 1028, 1035.)
“ ‘[E]very able-bodied prisoner’ must work while imprisoned. [Citation.] Prison wages
range from $12 to $56 per month, depending on the job and skill level involved.
[Citation.] Up to 50 percent of [a prisoner’s] wages and trust account deposits will be
deducted to pay any outstanding restitution fine, plus another 5 percent for the
administrative costs of this deduction.” (People v. Cervantes (2020) 46 Cal.App.5th 213,
229.) “ ‘[A]n inmate’s assignment to a paid position is a privilege dependent on available
funding, job performance, seniority and conduct.’ ” (Ibid.) We acknowledge that
Escalante would have to work for many years in prison to earn enough to pay off the
amount imposed, but he is relatively young, there is no indication he is unhealthy or
unable to work, and he need only pay $7.33 per month to fully satisfy his financial
obligation over the 60 years imposed on him.
Additionally, Escalante has not demonstrated for purposes of the excessive fines
clause that the aggregate amount imposed is grossly disproportionate to his level of
culpability and the harm he caused, even assuming the validity of his assertion of
indigency. (See People v. Lowery (2020) 43 Cal.App.5th 1046, 1048–1049, 1058.) That
trial counsel failed to make a futile objection based on the protection against excessive
fines does not amount to deficient performance. (See People v. Ochoa (1998) 19 Cal.4th
353, 463.) For these reasons, we cannot conclude on the record before us that trial
counsel provided deficient representation to Escalante.
Even if we were to conclude that Escalante’s trial counsel performed deficiently
by failing to object and to request an ability-to-pay hearing, Escalante has not met his
burden to show prejudice resulting from counsel’s failure. Again, the facts in the record
do not demonstrate that Escalante is and will be unable to pay the $5,280 or that the
amount imposed is excessive. Thus, we cannot say there is a reasonable probability the
result of Escalante’s sentencing would have been more favorable to him, in that the trial
15
court would have further reduced or eschewed the restitution fine and assessments had
trial counsel objected and requested a hearing. (See People v. Keene (2019) 43
Cal.App.5th 861, 864–865.)
III. DISPOSITION
The judgment is affirmed.
16
______________________________________
Danner, J.
WE CONCUR:
____________________________________
Bamattre-Manoukian, Acting P.J.
____________________________________
Wilson, J.
H049361
People v. Llamas-Escalante