People v. Esquivias CA2/2 ( 2020 )

Filed 12/17/20 P. v. Esquivias 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B301989
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. LA088058-
v. 01)
ADAN ESQUIVIAS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Thomas Rubinson, Judge. Affirmed.
Ava R. Stralla, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Paul M. Roadarmel, Jr. and Stacy S. Schwartz,
Deputy Attorneys General.
******
A defendant convicted of robbing four businesses over a
two-day crime spree argues that the trial court erred in (1)
instructing the jury on the factors relevant to eyewitness
testimony using the standard CALCRIM instruction, and (2)
dismissing only one of his two prior “strike” allegations under our
Three Strikes Law (Pen. Code, §§ 667, subds. (b)-(j), 1170.12,
subds. (a)-(d)).1 These arguments lack merit, so we affirm.
FACTS AND PROCEDURAL HISTORY
I. Facts
A. Robbery of Recycling Innovations
On March 15, 2018, defendant walked into a recycling
business called Recycling Innovations at lunchtime, put a gun in
the back of the on-duty cashier, and demanded money from the
cash register. The cashier gave him $75 or $80. The cashier
picked defendant out of a photospread and identified him in
court.
The entire robbery was caught on surveillance video, and
the cashier identified defendant on the video.
B. Robbery of Metro PCS store
Less than two hours after robbing the cashier at Recycling
Innovations, defendant walked into a Metro PCS store on Reseda
Boulevard, placed his gun on the cashier’s counter, moved the
gun back and forth on the counter so as to point it at one of the
two on-duty cashiers, and demanded that they empty their cash
registers. The cashiers gave defendant between $100 and $200.
One of the cashiers identified defendant out of a photospread,
and both cashiers identified defendant in court.
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2
The entire robbery was also caught on surveillance video
from multiple angles; both cashiers identified defendant on the
video and from still photographs of defendant’s face made from
the video.
C. Robbery of second Metro PCS store
The next day, at around 5:00 p.m., defendant walked into a
Metro PCS store on White Oak Boulevard, pulled out a gun and
placed it on the cashier’s counter with his hand atop it, pointed it
at the cashier, and told the cashier to “[j]ust give [him] the cash.”
The cashier gave defendant approximately $180. The cashier
identified defendant in court.
The entire robbery was also caught on surveillance video
from multiple angles, and the cashier was able to identify
defendant’s face from one of the videos.
D. Robbery of third Metro PCS store
A half-hour after robbing the second Metro PCS store,
defendant walked into a Metro PCS store on Reseda Boulevard,
pointed a gun at the cashier, and demanded cash. The cashier
gave defendant a little over $100. The clerk identified defendant
from a photospread and in court.
The entire robbery was also caught on surveillance video,
and the cashier was able to identify defendant’s face from
photographs he took of the video footage.
E. Defendant’s arrest
The following day, defendant was arrested at his
apartment. Clothing matching that worn by the robber of the
four businesses, and a gun identical in appearance to the gun
used in the robberies, were found in the apartment.
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II. Procedural Background
The People charged defendant with five counts of second
degree robbery (§ 211), one for each cashier-victim. As to each
robbery, the People further alleged that defendant was armed
with a firearm (§ 12022, subd. (a)(1)), as well as that he
personally used a firearm (§ 12022.53, subd. (b)). The People also
alleged that defendant’s 1995 convictions for second degree
robbery (§ 211) and assault with a deadly weapon (§ 245, subd.
(a)) constituted “strikes” within the meaning of our Three Strikes
Law, and that his 1995 robbery conviction also constituted a prior
serious felony (§§ 667, subds. (a), (b)-(j), 1170.12).
After a jury convicted defendant of all charged crimes,
found the personal use of a firearm allegation to be true as to
each crime,2 and after defendant admitted his prior “strike”
convictions, the trial court sentenced defendant to prison for 42
years and 4 months. More specifically, the court imposed a
principal sentence of 16 years on one robbery count (comprised of
a base sentence of 6 years, calculated as 3 years doubled due to
the prior strike, plus 10 years for the firearm enhancement),
followed by four consecutive sentences of 5 years and 4 months
for the remaining four robbery counts (comprised of a base
sentence of 2 years, calculated as one-third of the midterm
sentence of 3 years doubled due to the prior strike, plus 3 years
and 4 months for the firearm enhancement, calculated as one-
third of the 10-year firearm enhancement), followed by 5 years
for the prior serious felony. In calculating this sentence, the trial
court partially granted defendant’s motion to strike both of the
2 The People did not present the “armed with a firearm”
enhancement to the jury.
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People’s “strike” allegations by dismissing his assault with a
deadly weapon “strike” but not dismissing the robbery “strike.”
Defendant filed this timely appeal.
DISCUSSION
Defendant argues that the trial court erred in (1)
instructing the jury using CALCRIM 315, and (2) not striking
both of his prior strike convictions.
I. Instructional Error
CALCRIM 315 is the standard jury instruction setting
forth 13 mandatory and three optional “questions” jurors are to
“consider” “[i]n evaluating identification testimony”; one of those
questions is, “How certain was the witness when he or she made
an identification?” (CALCRIM No. 315.) Defendant argues that
the trial court’s recitation of the “certainty” factor renders all of
his convictions invalid because empirical evidence has disproved
any link between the accuracy of an eyewitness identification and
the certainty with which the eyewitness makes it. Our review of
jury instructions is de novo. (People v. Campbell (2020) 51
Cal.App.5th 463, 493.)
This argument entitles defendant to no relief in this case
for two reasons. First, our Supreme Court has repeatedly upheld
the certainty factor in CALCRIM 315 or its predecessor
instruction against precisely the criticism defendant levels here.
(People v. Sanchez (2016) 63 Cal.4th 411, 461-462; People v.
Johnson (1992) 3 Cal.4th 1183, 1231-1232; People v. Ward (2005)
36 Cal.4th 186, 213-214.) Although our Supreme Court granted
review in People v. Lemcke (June 21, 2018, G054241) [nonpub.
opn.], review granted Oct. 10, 2018, S250108, to reconsider its
prior precedent, Lemcke has not been decided and the prior
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precedent still binds us. (Auto Equity Sales, Inc. v. Superior
Court (1962) 57 Cal.2d 450, 456-457.)
Second, the trial court’s recitation of the certainty factor
was harmless under People v. Watson (1956) 46 Cal.2d 818, 835-
836 and Chapman v. Cal. (1967) 386 U.S. 18. Only one of the five
eyewitnesses alluded to the certainty of her identification by
saying she had “no doubt” defendant was depicted on the
surveillance video of the robbery; the other four did not mention
the certainty of their identifications at all. What is more, the
evidence that defendant was the perpetrator of all four robberies
was overwhelming: Defendant’s face was captured on the
surveillance videos of all four robberies; the clothing defendant
wore on the two separate days of robberies was found in
defendant’s apartment along with a gun identical in appearance
to the one used in the robberies; and all five eyewitnesses
provided interlocking descriptions of defendant’s distinctive facial
tattoos.
II. Sentencing Error
A trial court has the discretion to dismiss a “strike”
allegation. (§ 1385, subd. (a); People v. Williams (1998) 17
Cal.4th 148, 162.) In deciding whether to exercise this discretion,
the court is to “‘consider whether, in light of the nature and
circumstances of [the defendant’s] present felonies and prior
serious and/or violent felony convictions, and the particulars of
his background, character, and prospects, the defendant may be
deemed outside the [Three Strikes] scheme’s spirit, in whole or in
part, and hence should be treated as though he had not
previously been convicted of one or more serious and/or violent
felonies.’” (People v. Carmony (2004) 33 Cal.4th 367, 377.) There
is a “strong presumption” against granting a motion to strike.
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(Id. at p. 378.) We evaluate a trial court’s decision not to grant a
motion to strike for an abuse of discretion. (Id. at pp. 373-374.)
The trial court did not abuse its discretion in partially
granting and partially denying defendant’s motion to dismiss
both of his prior “strike” convictions, by dismissing one and not
dismissing the other. The court explained its view that it was
appropriate to dismiss one—but not both—prior “strike”
allegation because they were both 25 years old, because they both
“[came] from the same case” and because defendant’s interim
convictions in 2004 and 2008 were for drug crimes and thus, did
not involve “violence.” These are appropriate considerations.
What is more, this justification explains why the trial court
nevertheless declined to dismiss the prior robbery “strike”—
namely, because the similarity between the prior robbery strike
and the five pending robbery charges demonstrated defendant’s
recidivism and because the court’s concern about not doubly
punishing defendant for two older “strikes” suffered at the same
time did not justify the dismissal of both “strikes.” Because
imposing additional punishment for recidivists is squarely in the
heartland of the Three Strikes Law (People v. Davis (1997) 15
Cal.4th 1096, 1099), the court acted well within its discretion in
letting defendant’s prior robbery “strike” stand.
Defendant urges that the trial court nevertheless abused
its discretion in not dismissing both “strikes” because both strikes
were old, because the dismissal of one warranted the dismissal of
the other given that they were charged in the same case, and that
the sentence he would receive if both strikes were dismissed
would still be substantial. None of these additional
considerations renders the trial court’s ruling abusive. Where, as
here, a defendant has committed a string of crimes throughout
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his life, the age of a conviction matters less (People v. Daniels
(2009) 176 Cal.App.4th 304, 317); in any event, the age of a
“strike” conviction does not mandate its dismissal. Similarly,
dismissing one “strike” does not mandate dismissing another;
this remains true even where, as here, the dismissed “strike” was
charged in the same case as the other. (E.g., People v. Garcia
(1999) 20 Cal.4th 490, 502.) And although the still-substantial
length of the sentence that would be imposed if a “strike”
allegation were dismissed is a relevant factor (id. at pp. 502-503),
it is not dispositive; courts may assess whether the longer
sentence that would result if the “strike” allegation were not
dismissed is warranted in light of the defendant’s good prospects
for committing future crimes. (People v. Gaston (1999) 74
Cal.App.4th 310, 315.) Here, defendant’s recent spat of robberies
seems to signal a renaissance in his penchant for the commission
of violent crimes that the trial court could reasonably view as
warranting a longer sentence. At bottom, defendant is inviting
us to weigh the pertinent considerations differently than the trial
court. This is an invitation we must decline. (E.g., People v.
Myers (1999) 69 Cal.App.4th 305, 309 [“‘[W]e do not reweigh the
circumstances of the case to determine whether, in our opinion,
the trial court should have . . . exercis[ed] its discretion to strike a
prior conviction’”].)
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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________, J.
HOFFSTADT
We concur:
_________________________, P. J.
LUI
_________________________, J.
CHAVEZ
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