People v. Escareno CA2/2 ( 2021 )

Filed 7/26/21 P. v. Escareno 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B302856, B307141
Plaintiff and Respondent, (Los Angeles County
Super. Ct. Nos.
v. KA055189, VA068367)
ROBERT ANTHONY ESCARENO,
Defendant and Appellant.
APPEALS from orders of the Superior Court of Los Angeles
County, Salvatore T. Sirna and Raul Anthony Sahagun, Judges.
Affirmed in part, reversed in part, and remanded with directions.
Three Strikes Project, Milena N. Blake, Michael S. Romano
and Susan L. Champion for Defendant and Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Lance
E. Winters, Chief Assistant Attorney General, Susan Sullivan
Pithey, Assistant Attorney General, Scott A. Taryle and Chung L.
Mar, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Robert Anthony Escareno was sentenced in 2002
to prison terms totaling 175 years to life under the Three Strikes
law. In 2019, the secretary of the California Department of
Corrections and Rehabilitation (CDCR) recommended that the
sentences be recalled and appellant be resentenced. (Pen. Code,
§ 1170, subd. (d)(1).)1 Trial courts in Pomona and Norwalk found
that appellant is a threat to society and declined to recall his
sentences.2 We have consolidated the cases for review.
The Pomona court acknowledged the absence of “tangible
documentation or history that would aid the court in determining
whether to exercise its discretion.” However, it did not give
appellant an opportunity to submit evidence supporting his recall
request. The court abused its discretion in the Pomona case,
which we reverse and remand for further proceedings.
The Norwalk court refused to recall appellant’s sentence
after reading his supporting evidence and hearing testimony.
There was no abuse of discretion. The court could rationally find
that the threat appellant poses to society outweighs his good
behavior in prison. Prior imprisonment did not deter him from
committing armed robberies and carjacking. We affirm the
Norwalk ruling.
FACTS AND PROCEDURAL HISTORY
Appellant’s Conviction in the Pomona Case
On May 20, 2002, a jury convicted appellant of three counts
of second degree robbery using a firearm. (§§ 211, 12022.53,
____________________________________________________________
1 Undesignated statutory references are to the Penal Code.
2The Pomona case is Superior Court of Los Angeles County
No. KA055189. The Norwalk case is Superior Court of Los
Angeles County No. VA068367.
2
subd. (b).) The court found that appellant has 13 prior robbery
convictions and a conviction for assault with a firearm. (§§ 211,
245, subd. (a)(2).) It sentenced him to prison for 110 years to life
under the Three Strikes law.
This court affirmed the conviction in People v. Escareno
(Nov. 12, 2003, B159831) [nonpub. opn.]. The opinion states that
on September 20, 2001, appellant pointed a gun at a Sizzler
cashier and demanded all the money in the register, which she
gave him because she feared for her life. Three weeks later, he
robbed two Chevron station cashiers at gunpoint. Victims
identified appellant in a photo lineup, at the preliminary hearing,
and at trial; they were certain of their identifications because
they had a good look at appellant, who was unmasked and only a
few feet from them. (Ibid.)
In April 2019, appellant filed a motion in propria persona
to compel discovery, claiming he does not fit the description of the
person who robbed the Sizzler. The court denied his motion.
Appellant’s Conviction in the Norwalk Case
On October 15, 2002, a jury convicted appellant of second
degree robbery, carjacking, and possession of a firearm by a felon.
(§§ 211, 215, subd. (a), 12021, subd. (a)(1).) He used a firearm to
commit the carjacking and robbery. (§ 12022.53, subd. (b).) The
court found that appellant has 15 prior convictions for robbery
and one for assault with a firearm. (§§ 211, 245, subd. (a)(2).) It
sentenced him under the Three Strikes law to 65 years to life in
prison, to be served consecutively with his sentence in the
Pomona case.
This court affirmed the conviction in People v. Escareno
(Feb. 5, 2004, B163405) [nonpub. opn.]. The opinion states that
on October 12, 2001, appellant took a taxi from his home to a
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Shakey’s pizza parlor, which he held up at gunpoint. Afterward,
he returned to the taxi. The driver was apprehensive because he
saw “spooked” people leaving the restaurant; he feared for his life
when his dispatcher broadcast that a robbery had just occurred
there. The same day, appellant was accused of holding a gun on
a car salesman during a test drive, taking valuables and the car.
Appellant’s fingerprints were in the car when it was recovered
three days later. On December 3, 2001, appellant pointed a
handgun at a car salesman during a test drive, threatened to kill
him when he hesitated, and stole the car.3 (Ibid.)
The cab driver and Shakey’s employees identified appellant
in photo lineups, at the preliminary hearing, and at trial. The
employees had a long look at appellant and told police the name
“Escareno” is tattooed on the left side of his neck. The robbery
was caught on a security camera. The car salesmen identified
appellant in a photo lineup; they were certain he was the
carjacker. When police tried to arrest appellant, he ran away and
threatened to shoot them. (People v. Escareno, supra, B163405.)
The CDCR Recommendation
On May 31, 2019, after appellant served 17 years, CDCR
recommended that the sentences be recalled and that he be
resentenced. The CDCR evaluation recites appellant’s criminal
history. The People elaborated on his history in the Norwalk
case.
Born in 1974, appellant was arrested at age eight for arson
causing great bodily injury; the final disposition is unknown. He
has sustained petitions for burglary (1987); vandalism causing
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3 The jury did not reach a verdict on the October carjacking
and a mistrial was declared on that count.
4
$1,000 to $5,000 in damage (1989); and was an accessory to
attempted murder and assault with a firearm (1990).
In 1991, appellant was convicted of 11 counts of robbery
and assault with a firearm and sentenced to 15 years in prison
but was housed at the Youth Authority. Also in 1991, a
sustained petition found he committed robbery, battery on a
peace officer, and obstructed an officer, with a firearm
enhancement. In 1993, he was arrested for robbery and false
imprisonment.
Appellant began his adult incarceration in August 1993.
He was paroled in March 2001 and absconded from parole in
August 2001.4 He returned to parole in December 2001. He was
imprisoned as a parole violator in November 2002. While charges
were pending in the Pomona and Norwalk cases, appellant was
charged with a jail escape, which was later dismissed in the
interest of justice.
CDCR detailed appellant’s disciplinary history in prison.
He had a “serious” rule violation in 2006 for mutual combat; two
2006 administrative violations for staff manipulation; and a 2005
violation for destruction of state property. He “was identified as
a Security Threat” because of gang membership; however, he
renounced his gang affiliation in 2015. Since 2006, he “has
remained disciplinary free” and “demonstrated the desire and
ability to fulfill job assignments.”
Appellant is housed at a CDCR substance abuse treatment
facility and works as a library assistant. In prison, he worked as
a porter (2014), a clerk (2012), and in vocational office services
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4 After absconding from parole, appellant committed the
armed robberies and carjacking involved in the Pomona and
Norwalk cases between September and December 2001.
5
(2009). He has completed educational courses, substance abuse
programs, and is a speaker in Toastmaster’s. Family and friends
visit him in prison.
The Trial Court Proceedings
Represented by counsel, appellant submitted the CDCR
recommendation to the trial court, asserting that he “is one of
fewer than 75 people to receive such a recommendation out of a
prison population of over 120,000.” He argued that CDCR’s
evaluation of his adult criminal and juvenile record, prison
disciplinary history, and probation report lead to the conclusion
that his “exceptional” behavior shows he has changed and “would
be a positive asset to the community” if released.
Appellant’s counsel filed a request for a case management
conference in both cases. The Pomona court did not have
appellant supplement the material cited by CDCR. It decided the
request based on its review of the CDCR evaluation and
appellant’s criminal history.
Appellant submitted a brief and evidence in the Norwalk
case. He argued that his “overwhelming record of rehabilitation,
risk assessments and comprehensive reentry plan” support
resentencing. He emphasized his lack of disciplinary violations
for the past 10 years, his negative drug tests, his classification as
low security risk and the “low risk” he will reoffend if released
from custody. He plans to reenter society with help from a
supportive organization.
Former federal probation officer Richard Wood filed a
report and testified in the Norwalk case. He opined that
appellant is suitable for release, with a rehabilitative post-release
plan. Wood’s opinion was based on the absence of prison rule
violations for 14 years and appellant’s understanding that his
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behavior negatively impacted his victims, his family, and his own
life. Despite appellant’s serious criminal history, Wood did not
believe he poses a risk to society.
Wood testified that appellant was abandoned by his
parents, raised by his grandmother, was addicted to cocaine by
age 13, and “was an angry, alienated young man who started
committing a great number of antisocial acts for which he is now
ashamed.” He has been institutionalized most of his life, in the
juvenile delinquency system or prison. He was introduced to
drugs by gang members and did not receive treatment until his
current prison stint. Obtaining money to buy drugs motivated
his crimes. He has not tested positive for drugs in prison.
Appellant went to a segregated unit after engaging in a
prison fight in 2006. He had a revelation that he had to change
his life and began to participate in sobriety and education
programs. He has no record of gang involvement in prison and is
classified as a low security risk. Prison staff commend his work
ethic, dedication and courtesy. Wood acknowledged that
appellant “needs to be in [drug] treatment should he be released.”
The People opposed recall and resentencing.
The Trial Court Rulings
The Pomona Ruling
On October 30, 2019, the Pomona court declined to exercise
its discretion to recall appellant’s sentence, observing that he is a
third strike offender convicted of three counts of armed robbery.
The court listed reasons for its decision.
First, appellant’s “criminal history is extensive.” Starting
in 1987, he had four sustained juvenile petitions and at least 13
serious, violent felony convictions. The crimes increased in
severity and violence, and most involved a firearm.
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Second, while on parole for a 15-year prison sentence,
appellant “failed to conform his conduct to societal norms and
was undeterred from committing future, violent crimes.” These
included multiple armed robberies and a carjacking, which
“demonstrate that Mr. Escareno is both a real and a violent
threat to the community.”
Third, the recall request “fails to provide the court with any
tangible documentation or history” showing why appellant
qualifies for relief. Self-help classes may benefit appellant but
“the court is not inclined to exercise its discretion to recall [Mr.
Escareno’s] sentence based on the self-help study identified.”
The Norwalk Ruling
The Norwalk court acknowledged that appellant is one of
the few inmates to receive a CDCR recommendation. However, it
emphasized that after nine years of incarceration, appellant
promptly violated parole and committed multiple serious felonies
at gunpoint. It was fortuitous that no one was killed. With 12
prior strikes, appellant “is a poster child” for the Three Strikes
law. The court was not persuaded that appellant is no longer a
danger to society. Though he is doing well in prison, there is no
indication he can survive outside an institution without
committing very serious crimes. The court denied the request to
recall appellant’s sentence on June 26, 2020.
DISCUSSION
General Considerations
The trial court “may” recall a sentence “at any time upon
the recommendation” of CDCR and “resentence the defendant in
the same manner as if they had not previously been sentenced;” it
may reduce the term of imprisonment “if it is in the interest of
justice.” (§ 1170, subd. (d)(1).) In a two-step process, the court
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first decides whether to recall the sentence; if it recalls the
sentence, it then holds a sentencing hearing.5
The denial of a CDCR recommendation to recall a sentence
is appealable. (McCallum, supra, 55 Cal.App.5th at p. 210;
§ 1237, subd. (b) [appeal lies from “any order after judgment,
affecting the substantial rights of the party”].) We review the
order for an abuse of discretion; the ruling will not be disturbed
unless it was exercised in an arbitrary, capricious, or patently
absurd manner resulting in a manifest miscarriage of justice.
(McCallum, at p. 211.) Questions of statutory construction are
reviewed de novo. (Ibid.; People v. Frazier (2020) 55 Cal.App.5th
858, 864, 867 [there is no constitutional right to counsel when
CDCR submits a request to recall a sentence].)
Though CDCR may recommend recall of a sentence at any
time, section 1170, subdivision (d)(1) “apparently does not require
the court to respond to the recommendation.” (Dix v. Superior
Court (1991) 53 Cal.3d 442, 459.) It “allows the sentencing court
to recall and resentence at any time upon recommendation of
[CDCR], but . . . it does not require the court to ‘consider’ any
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5 At resentencing, “[t]he court may consider postconviction
factors, including, but not limited to, the inmate’s disciplinary
record and record of rehabilitation while incarcerated, evidence
that reflects whether age, time served, and diminished physical
condition, if any, have reduced the inmate’s risk for future
violence, and evidence that reflects that circumstances have
changed since the inmate’s original sentencing so that the
inmate’s continued incarceration is no longer in the interest of
justice.” (§ 1170, subd. (d)(1); People v. McCallum (2020) 55
Cal.App.5th 202, 214 (McCallum) [the “postconviction factors”
guide resentencing, not the initial decision whether to recall].)
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such recommendation.” (Dix, at p. 459, fn. 13; People v. Delson
(1984) 161 Cal.App.3d 56, 62 [recall “is permissive, not
mandatory”].) A CDCR recommendation does not trigger “any
right to the recommended relief.” (People v. Frazier, supra, 55
Cal.App.5th at p. 866.)
No Abuse of Discretion in the Norwalk Case
Appellant contends that the Norwalk court limited its
decision to circumstances at the time of his conviction and failed
to consider postconviction factors. The record belies his claim. At
the outset, the court said, “The court has read all of the papers,”
meaning it looked at the CDCR recommendation and appellant’s
evidence. After hearing testimony and argument, it recited
appellant’s criminal record and said, “I have to weigh that
against the material [that] indicates that he is not a danger.” It
declined to recall the sentence “notwithstanding the opinion” of
appellant’s expert, Mr. Wood.
The court thus considered appellant’s postconviction
behavior, as described in documents and by Mr. Wood. It
concluded that appellant’s history of recidivism outweighed his
good behavior in prison since 2006 and declined to exercise its
discretion to recall appellant’s sentence. The court decided that,
on balance, it was “not persuaded that [appellant] is no longer a
threat to the public.”
Appellant did not carry his burden of persuading the court
to recall the sentence. The court has sole authority over decisions
to recall a sentence. The CDCR recommendation appellant relies
upon is not binding on the court.
Appellant began his life of crime at age eight; although the
disposition is unknown for a charge of arson causing great bodily
injury, it is a community safety factor to consider. He had
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sustained juvenile petitions for burglary, vandalism, assault with
a deadly weapon, 12 robberies, battery on a peace officer, and was
an accessory to attempted murder. Released on parole, he
resumed his criminal career and committed four armed robberies
and a carjacking, all violent felonies. (§ 667.5, subd. (c)(9), (17).)
He escaped from jail while charges were pending.
Appellant repeatedly reoffended, and neither the Youth
Authority nor prison was a deterrent to recidivism. He was 27
years old when he committed the crimes at issue here. He points
to his postconviction participation in schooling, mentoring and
12-step programs, and absence of rule violations since 2006 as
reasons to recall his sentence. This is not enough, if a
defendant’s crimes are serious and violent. For example, a
defendant who commits murder as a juvenile may not qualify for
recall of his sentence of life without the possibility of parole
despite being remorseful; having no disciplinary record in prison
for five years; receiving letters of commendation from prison
officials; and participating in 12-step programs and the prison
ministry. (People v. Willover (2016) 248 Cal.App.4th 302, 311–
312, 316–317, 323–324 [applying § 1170, subd. (d)(2), the juvenile
recall and resentencing provision].)
Viewed in the context of his unremitting, life threatening
criminality, appellant’s rehabilitative efforts, though
commendable, did not convince the court that his sentence should
be recalled. The court weighed all the material before it and
reached a reasoned decision under the proper criteria. Its
decision was made with awareness of its discretionary authority
and the reasons for and against recall of the sentence. Though
the court disagreed with CDCR, this only illustrates it was a
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discretionary judgment. We cannot say the decision was
unreasonable, arbitrary, or a miscarriage of justice.
Abuse of Discretion in the Pomona Case
Appellant contends that the Pomona court “did not have
sufficient information to exercise informed discretion” when it
declined to recall his sentence without a hearing. He argues that
he was entitled to notice and an opportunity to present additional
postconviction evidence. The Attorney General agrees with
appellant.
Language in section 1170 “shows the Legislature did not
intend to require a trial court to hold a hearing before acting on a
recommendation by [CDCR] for recall and resentencing.”
(McCallum, supra, 55 Cal.App.5th at p. 206; People v. Delson,
supra, 161 Cal.App.3d at pp. 60–61 [court may consider a recall
request ex parte].) Though not required to hold a hearing, “the
trial court was required to consider evidence [from defendant] in
support of the [CDCR] recommendation” before ruling.
(McCallum, at p. 217, citing People v. Loper (2015) 60 Cal.4th
1155, 1167, and People v. Carmony (2004) 33 Cal.4th 367, 375.)
Appellant’s counsel attached the CDCR letter to his motion
and requested a case management conference “to discuss CDCR’s
recommendation and, if necessary set a briefing and hearing
schedule for this matter.” The McCallum court interpreted this
language to be a request to submit additional information
supporting the CDCR recommendation. (McCallum, supra, 55
Cal.App.5th at pp. 209, 216, fn. 13.)
In McCallum, the defendant had a Three Strikes sentence
for burglary. After receiving a CDCR recommendation, the trial
court considered McCallum’s criminal history involving drug use,
two robberies, petty theft with priors, battery and grand theft; he
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had five parole violations. In prison, McCallum took classes,
participated in a substance abuse program and had no rule
violations in his 12 years in prison. The trial court largely based
its refusal to recall the sentence “on a finding that McCallum had
no family or community support” as shown by the absence of
visitors. (McCallum, supra, 55 Cal.App.5th at pp. 207–209.)
Division Seven of this district concluded that McCallum
should have been allowed to provide information about family
and community support because McCallum, not CDCR, had
access to this material. McCallum would have submitted
documentation showing that he was accepted into a substance
abuse and mental health inpatient counseling program upon his
release. (McCallum, supra, 55 Cal.App.5th at pp. 206–207.)
Here, the Pomona court wrote that the CDCR request for
resentencing “fails to provide the court with any tangible
documentation or history that would aid the court in determining
whether to exercise its discretion” and “family and community
support for Mr. Escareno was not addressed by the CDCR in its
recommendation, with no identifiable base of support.”
In short, the Pomona court acknowledged that it needed
more information before it could exercise discretion. Appellant
could have supplied the documents the court lacked. “The trial
court’s rejection of [CDCR’s] recommendation without an
opportunity for [appellant] to present this information was an
abuse of discretion.” (McCallum, supra, 55 Cal.App.5th at pp.
218–219.)
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DISPOSITION
The order denying the recall of appellant’s sentence in
People v. Escareno, Superior Court of Los Angeles County No.
VA068367 is affirmed.
The order denying the recall of appellant’s sentence in
People v. Escareno, Superior Court of Los Angeles County No.
KA055189 is reversed. The matter is remanded to the trial court
with directions to allow the parties to submit information
relevant to the California Department of Corrections and
Rehabilitation’s recommendation and to provide briefing on
whether the court should follow the recommendation. Upon
receipt of this information, the court is to exercise its discretion
whether to recall Escareno’s sentence.
NOT TO BE PUBLISHED.
LUI, P. J.
We concur:
ASHMANN-GERST, J.
HOFFSTADT, J.
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