Filed 6/16/21 P. v. Escareno CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent,
A159650
v.
JOSE GUADALUPE (Mendocino County
ESCARENO, Super. Ct. No. SCUK-
CRCR-15-80897-2)
Defendant and Appellant.
Appellant was convicted of two counts of attempted murder
under Penal Code section 664/187, subdivision (a),1 accompanied
by firearm use enhancements under section 12022.53, subdivision
(b), and consecutive sentences were imposed. In a previous
unpublished opinion, we affirmed the judgment of conviction but
remanded the case for a hearing to allow the court to consider
striking the firearm use enhancements under recent amendments
that were enacted under Senate Bill 620. On remand, the trial
court struck the firearm enhancement attached to the
subordinate count and reduced the aggregate term by three years
four months, but it declined to strike the enhancement on the
Further references are to the Penal Code unless otherwise
1
indicated.
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principal count. We reject appellant’s claim that this was an
abuse of discretion.
I. BACKGROUND
On February 21, 2015, David S. saw appellant's nephew,
Francisco Escareno, driving very fast through the neighborhood,
and saw a dog fall off the back of Francisco’s2 truck. About 15
minutes later, Francisco returned with appellant. David told
Francisco to drive more slowly because David’s children played
outside, which made Francisco angry. The two men started to
fight. Appellant tried to hit David, and attempted to punch
David’s brother, Eduardo S., who was also present.
Appellant then ran to the truck, retrieved a pistol, and hit
David in the back with it, causing it to fire. David felt a hard
blow to his back and heard a shot. David fell off Francisco, who
stood up. Appellant told David and Eduardo, “I'm going to kill
you,” and tried to fire at them several times, but the gun was
jammed. Appellant and Francisco then got in the truck and left.
Appellant told a sheriff’s deputy he had hit David on the
back with the gun, which caused the gun to “go off.” Appellant
then saw the gun was jammed and he cleared it. Law
enforcement found the gun in Francisco’s truck. It did not appear
to be jammed.
Based on this evidence, a jury convicted appellant of two
counts of attempted murder against David and Eduardo and
found that appellant had personally used a firearm in connection
with those offenses under section 12022.53, subdivision (b). On
2 We use first names only to ease the burden on the reader.
2
April 18, 2017, appellant was sentenced to prison for an
aggregate term of 20 years eight months: the lower term of five
years plus a consecutive ten years for the firearm use
enhancement on one count, plus a consecutive sentence of five
years eight months on the other count (one-third the middle term
for the attempted murder count and one-third the term for the
enhancement).3 (See People v. Hill (2004) 119 Cal.App.4th 85,
88–92 [when only one term is provided for enhancement, court
must imposed one-third of that term on subordinate counts].)
The convictions were affirmed on direct appeal in an
unpublished opinion filed December 7, 2018. (People v. Escareno
(Dec. 7, 2018, A151350) [nonpub. opn].) The law had been
amended since the time of appellant’s original sentencing to give
courts the discretion to strike firearm enhancements under
section 12022.53, which had previously been mandatory.
(§ 12022.53, subd. (h), as amended by Stats. 2017, ch. 682, § 2.)
We concluded appellant was entitled to have this amendment
applied retroactively to his case because it was not yet final on
appeal, and we remanded the matter to superior court so the
court could consider exercising its discretion.
A hearing for this purpose was held in the superior court on
December 13, 2019. The judge who had presided over the trial
3 The jury also found true two counts of assault by means of
force likely to cause great bodily injury under section 245,
subdivision (a)(4) plus two firearm use enhancements under
section 12022.5, subdivision (a), and two counts of making
criminal threats (§ 422). The court granted a motion for new trial
on the criminal threats counts and stayed the sentences on the
assault counts under section 654.
3
had retired, so a different judge heard the motion. The new judge
(Hon. John Behnke) stated that he had reviewed the probation
report, the defense sentencing memoranda, the Court of Appeal
opinion, letters in support of defendant and the motion for new
trial filed before the original sentencing. He indicated his
tentative intent was to strike or stay one of the two
enhancements.
Defense counsel had presented approximately 30 letters of
support from petitioner’s friends and family, which uniformly
describe appellant as a loving husband, uncle and brother who
was hardworking, generous with his time, and always willing to
help family members and friends. Counsel also argued a number
of factors in mitigation: appellant was not the initiator of the
incident, but was assisting his nephew; no one had been seriously
injured; the initial discharge of the gun was accidental; appellant
had no prior record of violence and a minimal criminal record;
and appellant had been a model prisoner and received his GED
since being in prison.
The prosecutor did not dispute that appellant had strong
family support, but noted that David had been injured when he
was struck by the gun, that both victims had suffered emotional
distress, and that it was only a fortuity that the gun failed to fire.
He asked the court to consider striking only the firearm
enhancement on the second attempted murder count if it were
inclined to reduce the sentence.
The court indicated that under 1385, it typically considered
youth, the number of adult priors, the nature of past and current
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offenses and the overall length of the prison term imposed when
deciding whether to strike an allegation. It noted that appellant
was 29 years old at the time of the offenses and had never been to
prison, that his priors were minimal, and that the incident was
not planned. He had “tremendous” family support, and the trial
judge had taken his standing in the community into
consideration when imposing the lower term, but the trial judge
had also indicated from his comments on the record that it would
ignore the conduct toward the second victim to impose concurrent
terms.
The court struck the firearm allegation on count 2, for
which appellant had been consecutively sentenced, and reduced
his term by three years four months. “So I get that the firearm
enhancement is to impose substantial[ly] longer prison sentences
on felons who use firearms in the commission of their crimes and
that is an important and significant public policy. [¶] And I also
get that the defendant’s background and experience, lack of
record, family support and all that compel in my view some act
or, you know, relief; however, balancing the two, the tentative
decision that had, I think, strikes the appropriate balance under
all the circumstances.” The court reviewed the facts of the case
in detail and observed, “I agree it’s a long sentence, but it’s a long
sentence because the defendant used a firearm in the course of
two counts of attempted murder which the jury clearly convicted
him of.”
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II. DISCUSSION
Appellant contends the court abused its discretion on
remand by declining to strike the section 12022.53 enhancement
on the principal count as well as the enhancement on the
subordinate count. We disagree.
When appellant was initially sentenced in 2017, the trial
court had no authority to strike his section 12022.53
enhancement. Effective January 1, 2018, while his direct appeal
was pending, section 12022.53 was amended to permit trial
courts to strike firearm enhancements. Subdivision (h) of section
12022.53 now states that “[t]he 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. The authority provided by this
subdivision applies to any resentencing that may occur pursuant
to any other law.” This provision applies retroactively to cases
not yet final on appeal. (People v. Robbins (2018) 19 Cal.App.5th
660, 678.) Accordingly, we remanded the case so the court could
exercise its newly-conferred discretion.
“The factors that the trial court must consider when
determining whether to strike a firearm enhancement under
section 12022.53, subdivision (h) are the same factors the trial
court must consider when handing down a sentence in the first
instance.” (People v. Pearson (2019) 38 Cal.App.5th 112, 117
(Pearson).) These include the general objectives in sentencing
(Cal. Rules of Court, rule 4.410), circumstances in aggravation
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(Cal. Rules of Court, rule 4.421), and circumstances in mitigation
(Cal. Rules of Court, rule 4.423). (See Pearson, at p. 117.)
We review a trial court’s denial of a motion to strike a
firearm enhancement for abuse of discretion. (Pearson, supra,
(2019) 38 Cal.App.5th at p. 116.) An abuse of discretion occurs
only “in limited circumstances,” such as “where the . . . court was
not ‘aware of its discretion’ to dismiss [citation], or where the
court considered impermissible factors in declining to dismiss
[citation].” (People v. Carmony (2004) 33 Cal.4th 367, 378.)
“ ‘In reviewing for abuse of discretion, we are guided by two
fundamental precepts. First,“ ‘[t]he burden is on the party
attacking the sentence to clearly show that the sentencing
decision was irrational or arbitrary. [Citation.] In the absence of
such a showing, the trial court is presumed to have acted to
achieve legitimate sentencing objectives, and its discretionary
determination to impose a particular sentence will not be set
aside on review.’ ” [Citations.] Second, a “ ‘decision will not be
reversed merely because reasonable people might disagree. “An
appellate tribunal is neither authorized nor warranted in
substituting its judgment for the judgment of the trial judge. ” ’ ”
[Citations.] Taken together, these precepts establish that a trial
court does not abuse its discretion unless its decision is so
irrational or arbitrary that no reasonable person could agree with
it.’ ” (Pearson, supra, 38 Cal.App.5th at p. 116.)
There was no abuse of discretion here. The court was
well-aware it now had the power to strike a firearm
enhancement. The judge who heard the motion had not presided
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over the trial, but he reviewed the facts in some detail and
acknowledged several mitigating circumstances, including
appellant’s relative youth, his lack of a significant criminal
history, and his strong family support. The court struck a
firearm enhancement on one of the two counts, reducing
appellant’s sentence by three years four months. That it did not
further reduce the sentence does not mean that no reasonable
person could agree with the result; it simply means that this
judge was persuaded the objective of the sentencing law would
best be served by imposing one of two firearm enhancements.
III. DISPOSITION
The judgment is affirmed on appeal.4
4 Appellant has also filed a petition for writ of habeas
corpus as a companion to this appeal in In re Escareno, A161800.
In that matter, we have issued an order to show cause returnable
in the superior court.
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NEEDHAM, J.
We concur.
SIMONS, Acting P. J.
BURNS, J.
People v. Escareno / A159650
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