People v. Estrada CA5 ( 2022 )

Filed 5/6/22 P. v. Estrada 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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,
F081367
Plaintiff and Respondent,
(Super. Ct. No. F14905128)
v.
VICTOR JAVIER ESTRADA, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Fresno County. Jonathan B.
Conklin, Judge.
John P. Dwyer, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General,
Julie A. Hokans and Henry J. Valle, Deputy Attorneys General, for Plaintiff and
Respondent.
-ooOoo-
* Before Detjen, Acting P. J., Franson, J. and Smith, J.
This matter is back before us after a prior appeal that resulted in a remand for
resentencing in light of Senate Bill No. 620 (2017-2018 Reg. Sess.) (Senate Bill No.
620), which retroactively amended Penal Code section 12022.53, subdivision (h).1
Defendant Victor Javier Estrada now raises a claim of ineffective assistance of counsel
with respect to the resentencing. We conclude his claim is not appropriate for resolution
on direct appeal. Accordingly, we affirm.
BACKGROUND
The underlying facts of this matter are fully set forth in our prior opinion and we
need not repeat them here. (See People v. Estrada (Jan. 16, 2018, F073329) [nonpub.
opn.].) We will, however, outline the procedural history of the case for context.
Estrada was charged by an information filed in the Fresno County Superior Court
with one count of murder. (§ 187, subd. (a).) The murder charge was accompanied by a
drive-by shooting special circumstance allegation under section 190.2, subdivision
(a)(21) (i.e., that the murder was committed by shooting a gun from a motor vehicle with
the intent to kill). The special circumstance allegation subjected Estrada to a sentence of
life imprisonment without the possibility of parole (LWOP). A firearm enhancement
allegation under section 12022.53, subdivision (d), for “personally and intentionally”
discharging a firearm and proximately causing great bodily injury or death, was also
attached to the murder charge. This enhancement requires imposition of an “additional
and consecutive” term of 25 years to life, beyond the sentence for the underlying offense.
A jury found Estrada guilty of first degree murder and found true both the special
circumstance allegation as well as the firearm enhancement allegation. The court
imposed a mandatory LWOP sentence for the special circumstance murder and a
mandatory consecutive sentence of 25 years to life for the firearm enhancement.
1 Undesignated statutory references are to the Penal Code.
2.
In his initial appeal, Estrada argued the drive-by shooting special circumstance
statute was unconstitutional. Estrada further argued Senate Bill No. 620, which amended
the relevant firearm statute to make application of the enhancement discretionary, was
retroactive, necessitating remand for resentencing under the amended law. Senate Bill
No. 620 became effective after Estrada’s trial and sentencing and added the following
language to firearm enhancement provisions in sections 12022.5 and 12022.53: “The
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.” (§§ 12022.5, subd. (c), 12022.53, subd. (h); Stats. 2017, ch. 682, §§ 1, 2.) The
legislation thus granted trial courts new discretion to strike firearm enhancements arising
under sections 12022.5 and 12022.53.
In resolving Estrada’s initial appeal, we concluded the drive-by shooting special
circumstance was neither facially unconstitutional, nor was it unconstitutionally applied
in Estrada’s case. Accordingly, we affirmed the judgment of conviction. As for
Estrada’s sentencing argument, we agreed with Estrada that the amendment effected by
Senate Bill No. 620 was retroactive. Estrada’s sentence was vacated, and the matter
remanded for resentencing, to give the trial court the opportunity to exercise its newly
acquired discretion as to whether to impose or strike the firearm enhancement at issue.
DISCUSSION
I. Ineffective Assistance of Counsel
The trial court resentenced Estrada on June 25, 2020. At resentencing, Estrada’s
counsel moved to dismiss the section 12022.53, subdivision (d), 25-years-to-life firearm
enhancement. Counsel sought outright dismissal of the enhancement, rather than asking
for outright dismissal or imposition of a lesser firearm enhancement, such as a 10- or 20-
year firearm enhancement pursuant to sections 12022.53, subdivisions (b) and (c),
respectively. Counsel could properly have asked for imposition of a lesser firearm
enhancement, such as the 10- or 20-year firearm enhancement, because an existing,
3.
published decision of the First District Court of Appeal, People v. Morrison (2019) 34
Cal.App.5th 217, 221-225 (Morrison), held that a trial court could exercise its discretion
to impose or strike a charged enhancement, or impose an uncharged lesser enhancement.
(Morrison’s holding was subsequently adopted by our Supreme Court in People v. Tirado
(2022) 12 Cal.5th 688 [“Morrison correctly described the scope of a trial court’s
sentencing discretion under section 12022.53.”]).)2
At Estrada’s resentencing, the trial court reimposed the previous sentence,
declining to strike the 25-years-to-life firearm enhancement. (§ 12022.53, subd. (d).) In
considering whether to strike the 25-years-to-life firearm enhancement, the trial court had
noted it found “more than troubling” the fact that, after Estrada committed the present
offense, he committed another offense, that is, assault with a deadly weapon (ADW),
with a gang enhancement. The court added: “[H]ad it not been for the intervening
conduct I think this would be a much closer call.”
The standard for ineffective assistance of counsel is well established. First,
Estrada must show that trial counsel’s performance fell below an objective standard of
reasonableness under prevailing professional norms. (People v. Hernandez (2004) 33
Cal.4th 1040, 1052-1053; Strickland v. Washington (1984) 466 U.S. 668, 687.) Second,
2 At the time of Estrada’s resentencing hearing, another published appellate court
opinion, People v. Tirado (2019) 38 Cal.App.5th 637, had been issued, with review
granted by the California Supreme Court on November 13, 2019 (S257658). In People v.
Tirado, a panel of the Fifth District Court of Appeal held that a trial court had no
discretion to impose an uncharged lesser enhancement (id. at pp. 643-644); the Supreme
Court subsequently reversed the appellate decision in that case. Estrada argues that trial
counsel’s “evident unfamiliarity with Morrison and the fact that the Supreme Court
granted review in Tirado and other cases violated her Sixth Amendment duty to Estrada
to conduct a ‘thorough investigation of law.’ ” Estrada further notes, citing Hinton v.
Alabama (2014) 571 U.S. 263, 274, that “ [a]n attorney’s ignorance of a point of law that
is fundamental to his case combined with his failure to perform basic research on that
point is a quintessential example of unreasonable performance under Strickland.’ ” This
argument cannot be addressed on direct appeal as the record does not permit us to
conclude that counsel was unaware of these legal developments (see below).
4.
Estrada must establish it is reasonably probable that, absent trial counsel’s error, the
outcome of the proceeding would have been more favorable to him. The latter criterion
does not require a showing that the deficient representation more likely than not altered
the outcome. Estrada need only show a “reasonable probability” that “the result of the
proceeding would have been different.” (Strickland v. Washington, supra, 466 U.S. at p.
694.) A reasonable probability is “a probability sufficient to undermine confidence in the
outcome.” (Ibid.)
Estrada now argues: “Here, there could be no rational tactical purpose in not
asking the court, in the alternative, to dismiss the [section 12022.53,] subdivision (d)
enhancement [or] to impose the [section 12022.53,] subdivision (b) or the [section
12022.53,] subdivision (c) enhancement. Because counsel’s goal was to reduce Estrada’s
sentence, there is no tactical basis to fail to ask the court, in the alternative, to impose a
lesser-included enhancement if the court concluded that dismissing the firearm altogether
was unwarranted.”
Estrada further argues: “Trial counsel’s failure to seek a less-drastic remedy, one
that the trial court may have found more acceptable, constituted ineffective assistance of
counsel, in violation of Estrada’s state and federal constitutional rights. (See Cal. Const.
art. I, § 15; U.S. Const. 6th & 14th Amends.) But for counsel’s ineffectiveness, there was
a reasonable probability that the trial court would have dismissed the [section 12022.53,]
subdivision (d) enhancement and imposed either the [section 12022.53,] subdivision (c)
or the [section 12022.53,] subdivision (b) enhancement. Therefore, this court should
reverse the trial court’s ruling and remand the case for a new resentencing hearing.”
Estrada contends there was a reasonable probability the trial court would have
imposed a lesser, uncharged firearm enhancement had counsel presented that option in
the alternative, because several factors militated in favor of such an outcome. First,
Estrada was only 21 years old at the time of the offense. Second, the firearm
enhancement conduct involved the identical conduct for which Estrada received an
5.
LWOP sentence, namely, a drive-by murder. Estrada argues the fact that the “firearm
enhancement was not based on separate conduct and that Estrada would receive an
LWOP sentence for the special circumstance murder” undercut the need to rely on the
firearm enhancement to impose a life sentence. Third, Estrada notes evidence in the
record that he had successfully participated in multiple prison programs. Finally, Estrada
points to the trial court’s comment at his resentencing that but for the fact that he
committed an ADW with a gang enhancement after the present offense, “ ‘this would be
a much closer call’ ” for the court. Estrada contends the court’s comment indicates that a
request for imposition of a lesser firearm enhancement could reasonably have gained
some traction with the court, even though the request for outright dismissal of the 25-
years-to-life firearm enhancement did not.
In response to Estrada’s arguments, the People note: “ ‘If the record on appeal
sheds no light on why counsel acted or failed to act in the manner challenged, the claim
on appeal must be rejected unless counsel was asked for an explanation and failed to
provide one, or unless there simply could be no satisfactory explanation.’ ” (People v.
Lawley (2002) 27 Cal.4th 102, 133, fn. 9, citing People v. Mendoza Tello (1997) 15
Cal.4th 264.)” The People further note, citing Strickland v. Washington, supra, 466 U.S.
at p. 689, that “ ‘Judicial scrutiny of counsel’s performance must be highly deferential ….
[A] court must indulge a strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance.’ ”
The gravamen of the People’s response is as follows: “Here, appellant argues
there simply could be no satisfactory explanation for counsel’s omission. [Citation.]
But, considering that appellant had already been sentenced to life without the possibility
of parole for the murder and special circumstance, counsel may have taken an all-or-
nothing approach … knowing that a reduction from 25 years to life to 20 or 10 years had
no practical effect on appellant’s overall time in prison. Indeed, defense counsel’s initial
and main argument was that the sentence imposed was impermissible since the special
6.
circumstance and firearm enhancement were based on the same facts. [Citation.] Thus,
it is quite possible that counsel’s strategy was to have the court strike the firearm
enhancement entirely, not reduce it.”
In light of the high bar applicable to ineffective assistance of counsel claims on
direct appeal, we cannot discount the People’s argument. (See People v. Lopez (2008) 42
Cal.4th 960, 972 [“except in those rare instances where there is no conceivable tactical
purpose for counsel’s actions, claims of ineffective assistance of counsel should be raised
on habeas corpus, not on direct appeal”]; Yarborough v. Gentry (2003) 540 U.S. 1, 8
[“The Sixth Amendment guarantees reasonable competence, not perfect advocacy judged
with the benefit of hindsight.”].) We conclude the record does not affirmatively exclude
a rational basis for counsel’s choice to simply ask for outright dismissal of the firearm
enhancement. In light of the mandatory LWOP sentence for Estrada’s special
circumstance murder conviction, counsel could rationally have concluded an all-or-
nothing approach was warranted. Accordingly, Estrada’s ineffective assistance of
counsel claim fails.
DISPOSITION
The judgment is affirmed.
7.