People v. Espino CA1/1 ( 2021 )

Filed 12/16/21 P. v. Espino CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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 ONE
THE PEOPLE,
Plaintiff and Respondent, A160602
v. (San Mateo County
JORGE ESPINO, Super. Ct. Nos. SC051474A,
SF381780A)
Defendant and Appellant.
Defendant Jorge Espino appeals from the trial court’s sentencing order
that imposed a four-year jail term after he pled no contest to attempted grand
theft and multiple counts of forgery, plus an eight-month consecutive term
based on his violation of probation from a prior case. Espino’s sole contention
on appeal is that the trial court abused its discretion in imposing the
consecutive term because Espino challenged whether he was the defendant in
the earlier matter. We disagree. The record makes clear that the trial court
imposed a consecutive term because Espino took the stand and perjured
himself at his probation violation hearing. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In May 2002, Espino was charged by felony complaint with commercial
burglary (Pen. Code,1 § 460, subd. (b)), forgery (§ 470, subd. (a)), and petty
1 All statutory references are to the Penal Code.
theft (§ 666) in case No. SC051474A (SC matter). Espino pled no contest to
the forgery charge and, after serving a 60-day term in jail, was placed on
probation for three years.2 On July 31, 2002, an affidavit of probation
violation was filed, alleging Espino had failed to report to probation and
recommending revocation. The court revoked his probation and issued a
bench warrant for his arrest.
In November 2019, Espino was charged by felony information in a
second criminal matter for grand theft (§ 487, subd. (a)), attempted grand
theft (§§ 664, 487, subd. (a)), and 33 counts of forgery (§ 470, subd. (d)) in case
No. SF381780A (SF matter). Espino was alleged to have fraudulently cashed
33 checks from a local funeral home business in 2011, resulting in losses
totaling $87,800. On December 30, 2019, Espino pleaded no contest to
attempted grand theft and four counts of forgery.
At the April 24, 2020 sentencing hearing, counsel for Espino requested
that he be placed on probation in the SF matter. The trial court denied the
request because, among other reasons, Espino had been on probation (from
the SC matter) at the time of these offenses and had absconded from
probation for approximately 17 years. It sentenced Espino to a four-year jail
term: a two-year term on the initial forgery count, consecutive eight-month
terms on each of the three additional forgery counts, and a concurrent one-
year term on the attempted grand theft count.
The trial court then turned to the SC matter. Although there had been
an agreement communicated to the trial court that if Espino admitted to the
probation violation he would receive a two-year concurrent term, Espino
requested to see a copy of the signed conditions of probation on the SC
2Espino has used several aliases, including Ramiro Alexis Penaloza,
Valdemar Espino-Arroyo, and Cesar Gonzalez Reyes. He was convicted in
the SC matter under the name Ramiro Alexis Penaloza.
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matter. Espino’s counsel then stated: “Your Honor, even though I showed
him the documents probation provided to me regarding the booking photo
associated with this case number, and I thought we had an understanding,
my client is now denying that even though it’s a different name that he
signed this document, the conditions of probation.”
The trial court responded: “It’s the Court’s perception that Mr. Espino
is not being truthful today and is playing games with the Court. So I’m—
what I’m going to do is the sentence—so all of the promises are off, Mr.
Espino. The sentence in the [SF matter], I’m withdrawing that sentence
because it was based on information that is now being denied.” The court
recalled its sentence in the SF matter, remanded Espino to custody, and set a
hearing for identification. At the May 1, 2020 identification hearing, Espino
admitted that he was the defendant in the earlier SC matter. The trial court
then set a hearing to determine if a probation violation had occurred in the
SC matter, and for sentencing in both cases.3
At the June 5, 2020 hearing, the trial court first observed that the court
minutes from May 8, 2002 reflected the imposition of standard conditions of
probation on Espino, and that he had signed his conditions of probation on
May 15th, including the condition that he keep his probation officer apprised
of his physical whereabouts. Probation officer Edward Taylor testified that
Espino had failed to report to probation in July 2002, despite numerous calls
and letters directing him to do so. Espino testified that, during that time, he
had been in custody on an immigration hold for approximately six to seven
3 The trial court had already revoked Esposito’s probation as part of a
third criminal matter against him, and thus the court needed only to
determine whether Esposito had committed a violation of probation upon
which he could be sentenced.
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months before being deported to Mexico. The following exchange then
occurred with his counsel:
“Q: Were you released from immigration custody at some point?
“A: Yes.
“Q: When you were released, did you remember that you were supposed
to check in with the probation officer?
“A: No.
“Q: Did you ever understand that you had a probation officer to check
in with?
“A: No.”
On cross-examination, however, Espino testified that while in immigration
custody, he told his brother to call his probation officer. Based on this
evidence, the trial court found that Espino had violated the terms of his
probation. The court clarified that it was basing the violation on Espino’s
conduct prior to the filing of the affidavit on July 19, 2002.
The trial court then proceeded with sentencing. On the SF matter, it
sentenced Espino to the same four-year total term as had been imposed and
then recalled at the prior sentencing hearing. On the SC matter, it sentenced
Espino to an eight-month term to run consecutive to the four-year term in the
SF matter. It explained: “[J]ust his original answers of no to the questions of
whether or not he even understood he had a probation officer, I don’t find to
be credible, again, because he stood there at his sentencing and was told he
was going to be on probation. His probation officer met with him and went
over his conditions with him. So I just don’t find it at all credible that he
didn’t even know he had a probation officer and somebody to check in with.
[¶] . . . [T]o say that, oh, I didn’t even know and I didn’t even know I had a
probation officer, in the Court’s view, is false. [¶] So I want to make very
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clear here, it is going to be eight months consecutive, but I want to make
clear this is not because Mr. Espino decided to have a hearing. I’m not—I’m
not punishing him for exercising his right to have a hearing. There is
nothing wrong with that.”
The trial court then cited People v. Howard (1993) 17 Cal.App.4th 999,
1004 (Howard) for its holding that, when imposing an aggravated sentence
based on perjury, the sentencing judge must make findings on the record that
there was a willful statement made under oath of a material matter that the
witness knew to be false. While expressing doubt as to whether Howard
applied in the probation context, the court continued: “[O]bviously, it was
very material to these proceedings whether or not he knew he had a
probation officer, whether he knew there was an obligation to report and he
testified that he did not and then he contradicted himself and said, ‘Well, I
told my brother to try and contact someone for me.’ One of those statements
is false and he knew it, and that’s material to the proceedings we had here, so
that’s the reason I think that the eight months should be consecutive.”
This appeal followed.
DISCUSSION
“The determination of whether sentences shall be served consecutively
or concurrently is a matter of discretion with the trial court, and will not be
disturbed on appeal in the absence of a showing of abuse of discretion.”
(People v. Graham (1961) 198 Cal.App.2d 617, 620.) Here, Espino argues
that the trial court abused its discretion in imposing the eight-month
consecutive term because it was based on the court’s “overreact[ion]” to his
“identity dispute” at the April 24, 2020 hearing. We are not persuaded.
While the trial court may have indicated that Espino would receive a
two-year concurrent term if he admitted the probation violation, Espino did
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not make any such admission. Instead, he denied having signed the
conditions of probation and denied being the defendant in the SC matter.
Based on this unexpected development, the trial court recalled its sentence
and proceeded with the identification and probation violation hearings. At
the probation violation hearing, Espino did not admit the violation and
instead testified under oath that he did not know he had a probation officer.
Espino then contradicted himself by testifying that he had asked his brother
to contact his probation officer. As the trial court observed, Espino’s claim
that he was unaware of his obligation to check in with his probation officer
was willfully false, and materially so because it went to the question whether
Espinoza knowingly violated a condition of his probation. This probation
violation hearing—and the perjury that resulted therefrom—did not flow
from any abuse of discretion by the trial court, but instead from Espino’s own
conduct.
Espino also argues that the trial court abused its discretion because
“reasonably questioning whether you are the named defendant” and
“frustrating the court” are not aggravating circumstances or factors that
justify consecutive sentences under California Rules of Court, rules 4.421 and
4.425. This argument both misapprehends the rules and ignores the trial
court’s express reasons for imposing a consecutive term. Rules 4.421 and
4.425 provide nonexclusive lists of circumstances in aggravation and factors
affecting concurrent or consecutive sentences. (Cal. Rules of Court, rules
4.421, subds. (a)–(b) [“Circumstances in aggravation include factors . . . .”] &
4.425 [“Factors affecting the decision to impose consecutive rather than
concurrent sentences include . . . .”].) A court may also enhance a defendant’s
sentence upon finding that he or she committed perjury. (Howard, supra, 17
Cal.App.4th at p. 1004.) That is what the trial court did here, with on-the-
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record findings that Espino made a willful, false statement under oath that
was material to the issue of his probation violation.
In sum, we conclude that the trial court did not abuse its discretion in
imposing the eight-month consecutive term.
DISPOSITION
The judgment is affirmed.
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_________________________
Sanchez, J.
WE CONCUR:
_________________________
Humes, P. J.
_________________________
Margulies, J.
A160602
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