People v. Molina CA5 ( 2021 )

Filed 11/3/21 P. v. Molina CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F081811
Plaintiff and Respondent,
(Madera Super. Ct.
v. No. MCR054483)
ALVARO CAMACHO MOLINA,
OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Madera County. Ernest J.
LiCalsi, Judge.
Athena Shudde, under appointment by the Court of Appeal, for Defendant and
Appellant.
Office of the Attorney General, Sacramento, California, for Plaintiff and
Respondent.
-ooOoo-
* Before Detjen, Acting P. J., Franson, J. and Meehan, J.
INTRODUCTION
Appellant and defendant Alvaro Camacho Molina was convicted of attempted
murder and other charges after shooting into an occupied vehicle. As a result of his first
appeal, this court remanded the matter for the trial court to determine whether to exercise
its discretion to dismiss the Penal Code section 12022.531 firearm enhancements. On
remand, the court declined to do so, and defendant filed the instant appeal from that
decision. His appellate counsel has filed a brief that summarizes the facts with citations
to the record, raises no issues, and asks this court to independently review the record.
(People v. Wende (1979) 25 Cal.3d 436 (Wende).) We affirm.
FACTS2
On August 4, 2016, defendant pulled up next to a Suburban driven by Armando
Castro. Defendant’s sister, Crystal, was a passenger in the vehicle. Defendant began
shooting at them with a handgun. A bullet struck Crystal, rendering her unconscious.
Castro rammed defendant’s truck, causing it to crash into a light pole and flip. Defendant
ran and hid in an orchard, but he was eventually arrested by responding officers.
PROCEDURAL BACKGROUND
On June 8, 2017, after a jury trial, defendant was found not guilty of count 1,
attempted murder of Crystal, and convicted of the lesser included offense of attempted
voluntary manslaughter (§§ 664 & 192, subd. (a)); he was convicted of count 2,
attempted murder of Castro (§§ 664 & 187, subd. (a)); and count 3, shooting into an
occupied motor vehicle (§ 246); with enhancements for personal use of a firearm for
count 1 (§ 12022.5, subd. (a)); personal use of a firearm for counts 2 and 3 (§ 12022.53,
subd. (b)); personally and intentionally discharging a firearm (§ 12022.53, subd. (c)) for
1 All further statutory references are to the Penal Code unless otherwise stated.
2 On December 2, 2020, this court granted defendant’s motion to take judicial
notice of this court’s own records in his first appeal, People v. Molina (case
No. F076733).
2.
count 2; and personally and intentionally discharging a firearm causing great bodily
injury to his sister (§ 12022.53, subd. (d)) for count 3.
On December 8, 2017, the court sentenced defendant to an aggregate determinate
term of 26 years eight months, consisting of the lower term of five years for count 2,
attempted second degree murder of Castro; a consecutive term of 20 years for the section
12022.53, subdivision (c) firearm enhancement, with count 2 designated as the principal
term; and a consecutive term of one year eight months (one-third the midterm of five
years) for count 3, shooting at an occupied vehicle. The court imposed a consecutive
indeterminate term of 25 years to life for the section 12022.53, subdivision (d) firearm
enhancement attached to count 3 and stayed the terms on count 1 and the remaining
enhancements.
On December 13, 2017, defendant filed a notice of appeal.
First appeal
On December 31, 2019, this court filed the nonpublished opinion in defendant’s
first appeal. (People v. Molina (Dec. 31, 2019, F076733) [nonpub. opn.].) Defendant
argued that since the aggregate term imposed for count 3 was greater than that imposed
for count 2, the court erroneously selected count 2 as the principal term and he should be
resentenced. We rejected this argument. (Id. at pp. 4–6.)
Defendant also argued, and the People conceded, that the matter should be
remanded for the court to determine whether to exercise its discretion to dismiss the
section 12022.53 firearm enhancements, pursuant to subsequent amendments granting
such discretion as enacted by Senate Bill No. 620, effective on January 1, 2018, and
applied retroactively. (2017–2018 Reg. Sess.) (Stats. 2017–2018, ch. 682, §§ 1, 2.)
“Since there is no clear indication of the trial court’s intent, we agree with the parties that
the matter should be remanded to the trial court for it to consider whether to exercise its
discretion to strike any of the gun use enhancements it imposed.”
3.
Proceedings on remand
On remand, defense counsel filed a motion for the court to exercise its discretion
to dismiss the firearm enhancement of 25 years to life imposed for count 3, and modify
the enhancement imposed for count 2 from 20 years to 10 years. Defendant asserted that
modification of his sentence was appropriate because he was provoked by Castro, a
convicted felon known to be violent; the circumstances were unusual and not likely to
recur because of what defendant believed was a “troublesome” relationship between his
sister and Castro; defendant did not initially know his sister was in Castro’s car and did
not intend to harm her; defendant did not have a prior criminal record; and he displayed
good behavior since incarceration.
The prosecution filed opposition and argued there were no circumstances to
support modifying defendant’s sentence or dismissing the firearm enhancements.
On September 9, 2020, the court held the sentencing hearing on remand. Defense
counsel restated his arguments to dismiss and modify the firearm enhancements and
requested the court to reduce defendant’s aggregate term to 16 years.
The court denied defendant’s motion to modify the sentence and reaffirmed the
aggregate term previously imposed. The court noted that the jury rejected defendant’s
version of the incident, and the matter was only remanded to consider resentencing on the
enhancements.
“The jury believed … that the defendant was staking out the victim. He was going
to kill the victim, but what the defendant did not know was that his sister was going to be
in the truck with the victim. The jury found that the defendant tried to kill his own sister,
but found that the anger developed right there when he saw his sister. And therefore,
they convicted him of attempted voluntary manslaughter. The defendant nevertheless
intended to kill both the victim and his sister. He shot his own sister in the head.
Luckily, his sister did not die. [¶] The actions in this case are egregious. The Court is
4.
exercising its discretion, and I decline to strike any of the enhancements. The original
sentence shall stand.”
Second appeal
On October 1, 2020, defendant filed a timely notice of appeal.
DISCUSSION
As noted above, defendant’s counsel has filed a Wende brief with this court. The
brief also includes the declaration of appellate counsel indicating that defendant was
advised he could file his own brief with this court. By letter on December 28, 2020, we
invited defendant to submit additional briefing. He has failed to do so.
After independent review of the record, we find that no reasonably arguable
factual or legal issues exist.
DISPOSITION
The judgment is affirmed.
5.