People v. Esparza CA2/2

Filed 8/24/21 P. v. Esparza 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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, B305417
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. PA049963)
v.
DANIEL ESPARZA,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County. Daniel B. Feldstern, Judge. Affirmed.
Carlo Andreani, under appointment by the Court of Appeal,
for Defendant and Appellant.
Matthew Rodriquez, Acting Attorney General, Lance E.
Winters, Chief Assistant Attorney General, Susan Sullivan
Pithey, Assistant Attorney General, Amanda V. Lopez and John
Yang, Deputy Attorneys General, for Plaintiff and Respondent.
______________________________
In 2006, a jury convicted defendant and appellant Daniel
Esparza of second degree murder (Pen. Code, § 187, subd. (a);
count 1)1 and found true the allegations that he personally and
intentionally discharged a firearm within the meaning of section
12022.53, subdivisions (b) through (e) and that the offense was
committed for the benefit of a criminal street gang within the
meaning of section 186.22, subdivision (b)(1). (People v. Esparza
(Sept. 5, 2007, B194326) [nonpub. opn.], at p. 2 (Esparza).) He
was sentenced to 40 years to life in prison. (Ibid.) On direct
appeal, we affirmed the judgment. (Id. at p. 11.)
Defendant thereafter filed two postjudgment motions.
First, on April 12, 2019, defendant filed a petition for
resentencing pursuant to section 1170.95. The trial court denied
that petition on the grounds that defendant was not convicted of
second degree murder under either a theory of felony murder or
the natural and probable consequences doctrine. The trial court
also determined that defendant was the actual killer based upon
the jury’s finding that he personally discharged the firearm
causing death.
Second, on November 18, 2019, defendant moved for a
Franklin2 hearing in order to make a record of mitigating
evidence relating to his youthfulness at the time of the crime.
The trial court summarily denied defendant’s motion without
prejudice on the grounds that it did not provide any offer of proof
of relevant evidence, and found that it was doubtful that a
Franklin hearing would “yield useful information for a future
parole hearing.”
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2 People v. Franklin (2016) 63 Cal.4th 261 (Franklin).
2
Defendant timely appealed both orders. Regarding the
denial of his section 1170.95 petition, defendant argues that he
was denied effective assistance of counsel at the resentencing
hearing. Regarding the denial of defendant’s request for a
Franklin hearing, defendant argues that the trial court
erroneously denied his request.
We are not convinced by defendant’s arguments.
Accordingly, we affirm the trial court’s orders.
FACTUAL BACKGROUND
“At approximately 9:00 or 10:00 p.m. on May 10, 2002,
Manuel Contreras (Contreras) went to a party held in the
backyard of a residence in Pacoima. An announcement was made
at approximately 1:00 a.m. that the party was over, and the
guests proceeded to leave. As Contreras left with some friends,
he saw 10 to 15 men who appeared to be gang members standing
at the gate. Contreras and his friends were all wearing
Los Angeles Dodger baseball caps. The group of gang members
‘hit up’ Contreras’s friends, and Contreras asked the men what
the problem was. The gang members asked Contreras if he and
his friends were from ‘San Fer,’ which was a gang in the
San Fernando Valley. Contreras replied, ‘No, we don’t gang-
bang.’ Members of the group called out ‘AGL,’ which stood for
Astoria Garden Locos, another Valley gang.” (Esparza, supra,
B194326, at p. 2.)
As Contreras began to walk away, one of the gang members
snatched Contreras’s baseball cap from his head. When one of
the gang members asked Contreras if he wanted to come and get
it, Contreras decided to forget it and go home. (Esparza, supra,
B194326, at pp. 2–3.)
As Contreras left, one of the gang members punched him
from behind. A fight ensued. At one point, Luis Rodriguez
3
(Rodriguez) intervened for Contreras. Contreras then heard two
to four gunshots. When the shooting stopped, Contreras got up
and ran away. (Esparza, supra, B194326, at p. 3.)
Rodriguez died from a gunshot wound to the abdomen.
(Esparza, supra, B194326, at p. 3.) The fatal wound was caused
by a copper-jacketed, lead-core bullet measuring nine millimeters
in diameter. At the shooting scene, police recovered two
.40-caliber spent cartridges across the street from where
Rodriguez’s bloody clothing had been left. They also recovered
two spent nine-millimeter cartridges at a spot 210 feet south of
the .40-caliber cartridges. (Ibid.)
During its investigation of the crime, police interviewed
Orlando Chavez, a former AGL member who was at the party
when the fighting began. “When he heard shots, he jumped over
a wall. While crossing the street, he saw the gunman.” (Esparza,
supra, B194326, at p. 4.) He identified defendant from a
photographic lineup as the shooter, although at trial he recanted
his prior identification. (Ibid.)
“On June 3, 2002, defendant and Jesus Romero (Romero)
were arrested in a car. In the center console, police found a
weapon. In this June 2002 incident, defendant admitted in court
that he personally used the gun. Detective [Ronald] King learned
of defendant’s and Romero’s arrest and the fact that a gun was
found in the car they occupied. Detective King requested that the
gun be compared with the ballistic evidence recovered at
Rodriguez’s shooting. The same gun was later admitted into
evidence in the instant case.” (Esparza, supra, B194326, at p. 4.)
“Starr Sachs (Sachs), a firearms examiner with the
Los Angeles Police Department, identified the handgun recovered
during defendant’s June 2002 arrest, as a semiautomatic Glock.
4
The Glock uses .40-caliber Smith and Wesson ammunition.
Sachs testified that the .40-caliber cartridges whose cases were
found at the scene were fired from the Glock. The bullet
recovered from the victim was consistent with either a .40-caliber
Smith and Wesson or a 10 millimeter. The bullet was not
marked well enough to confirm or eliminate it as having been
fired from the Glock. The Glock will not fire 10-millimeter
cartridges, only .40 caliber ones, even though the two types have
the same diameter. A smaller bullet, such as a nine millimeter,
might fire from the Glock.” (Esparza, supra, B194326, at p. 4.)
PROCEDURAL BACKGROUND
I. Section 1170.95 Petition
A. Defendant’s petition
On April 12, 2019, defendant filed a section 1170.95
petition requesting resentencing. He asserted, inter alia, that he
was convicted of murder pursuant to the felony murder rule or
the natural and probable consequences doctrine and that he could
not now be convicted of murder because of changes made to
sections 188 and 189. He did not check the box indicating that he
was not the actual killer.
B. The People’s opposition
The People opposed the petition on the grounds that
defendant was convicted of murder with express malice as the
actual killer who personally used a firearm. In addition, the trial
court’s instructions to the jury demonstrated that it had not been
instructed with principles of aiding and abetting, natural and
probable consequences, or felony murder.
C. Defense counsel declines to file a reply brief
Counsel was appointed to represent defendant. On
January 24, 2020, defense counsel appeared in court, announced
an office review of defendant’s case had been conducted, and
5
stated that counsel had elected not to file a reply to the People’s
opposition based upon defendant’s ineligibility for relief as the
actual shooter.
D. Trial court order
On February 25, 2020, the trial court denied defendant’s
petition on the grounds that he had not been convicted under
either a theory of felony murder or the natural and probable
consequences doctrine. The trial court also relied upon the fact
that defendant was the actual killer based upon the jury’s finding
that he personally discharged the firearm causing death.
II. Motion for a Franklin Hearing
On November 18, 2019, defendant moved for a Franklin
hearing in order to make a record of mitigating evidence relating
to his youthfulness at the time of the crime. His supporting
declaration indicated that he was 20 years old at the time of
offense and was eligible for a youthful offender hearing in or
around 2026.
On January 30, 2020, the trial court summarily denied
defendant’s motion. In its order, the trial court indicated that
such motions “should contain an offer of proof, or the types of
evidence that an offender believes to be relevant for his
. . . motion, and . . . explain what, if any, alternative efforts the
defendant has made to gather information pursuant to Penal
Code § 3051(f),” which proffers were “particularly relevant and
necessary in cases when substantial time has passed, as is [this]
case here.” Thus, it denied the motion without prejudice “as it
lacks any offer of proof of relevant evidence to justify a hearing
and does not include what efforts, if any, the defendant has made
to make his record pursuant to Penal Code § 3051(f).” It further
noted that it was “doubtful that a Franklin hearing [would] yield
useful information for any future parole hearing” “given the
6
defendant’s current age and the substantial time that has passed
since the date of his offense[.]”)
On March 9, 2020, defendant filed a notice of appeal from
the order denying his motion for a Franklin hearing.
DISCUSSION
Defendant’s Section 1170.95 Petition
I. Standard of Review
We review the trial court’s order de novo. (See Martinez v.
Brownco Construction Co. (2013) 56 Cal.4th 1014, 1018
[application of law to undisputed facts]; A.S. v. Miller (2019) 34
Cal.App.5th 284, 290 [statutory interpretation].)
II. Relevant law
Section 1170.95 provides a mechanism whereby people
“who believe they were convicted of murder for an act that no
longer qualifies as murder following the crime’s redefinition in
2019[] may seek vacatur of their murder conviction and
resentencing by filing a petition in the trial court.” (People v.
Drayton (2020) 47 Cal.App.5th 965, 973.)
In order to obtain resentencing relief, the petitioner must
proceed through section 1170.95’s separate steps. (People v.
Lewis (July 26, 2021, S260598) ___ Cal.5th ___ [2021 Cal.LEXIS
5258] (Lewis).) First, a defendant must file a facially sufficient
section 1170.95 petition. The petitioner must aver that he is
eligible for relief because (1) an accusatory pleading was filed
against him allowing the prosecution to proceed under a theory of
felony murder or murder under the natural and probable
consequences doctrine; (2) he was convicted of first or second
degree murder; and (3) he could not be convicted of murder as a
result of the recent amendments to sections 188 and 189.
(§ 1170.95, subds. (a)(1)-(3), (b)(1)(A).)
7
“Where the petition complies with [these] requirements,
then the court proceeds to subdivision (c) to assess whether the
petitioner has made ‘a prima facie showing’ for relief. [Citation.]”
(Lewis, supra, ___ Cal.5th ___ [2021 Cal.LEXIS 5258], at p. *7.)
The trial court may rely on the record of conviction in
determining whether the prima facie showing has been made.
(Id. at p. *29.) “‘[I]f the record, including the court’s own
documents, “contain[s] facts refuting the allegations made in the
petition,”’” then the trial court must dismiss or deny the petition.
(Lewis, supra, at p. *31; see also People v. Verdugo (2020) 44
Cal.App.5th 320, 328–333 (Verdugo), review granted Mar. 18,
2020, S260493; People v. Cornelius (2020) 44 Cal.App.5th 54, 57–
58 (Cornelius), review granted Mar. 18, 2020, S260410.) As is
relevant to the issues in this appeal, a disqualifying factor
includes a petitioner that the jury found was the actual killer.
(Cornelius, supra, at p. 58; People v. Edwards (2020) 48
Cal.App.5th 666, 674–675 (Edwards), review granted July 8,
2020, S262481; People v. Tarkington (2020) 49 Cal.App.5th 892,
896 (Tarkington), review granted Aug. 12, 2020, S263219.)
Only if the trial court determines that the petitioner has
made a prima facie showing of entitlement to relief must it issue
an order to show cause. (§ 1170.95, subd. (c).)
III. The trial court properly denied defendant’s petition for
resentencing
A. Defendant was ineligible for resentencing relief
The trial court properly denied defendant’s petition for
resentencing because he was ineligible for the relief as the actual
shooter. His record of conviction shows that the only theory of
liability for murder on which the jury was instructed was second
degree murder with malice aforethought pursuant to CALCRIM
8
No. 520. The jury was not instructed on either the felony murder
or natural and probable consequences doctrine.
Furthermore, the jury found true the allegation that
defendant personally and intentionally discharged a firearm
causing great bodily injury or death under section 12022.53,
subdivision (d). While a true finding on this enhancement, by
itself, may not necessarily indicate that the defendant was the
actual killer, it does here given that there was no theory of
vicarious liability offered that would have rendered defendant
eligible for relief. (See People v. Offley (2020) 48 Cal.App.5th 588,
594, 598–599.)
And, in our prior opinion, we specifically held that
“Chavez’s identification of defendant as the shooter was sufficient
substantial evidence to sustain the conviction.” (Esparza, supra,
B194326, at p. 8.)
Because the record of conviction establishes that defendant
was ineligible for relief as a matter of law, the trial court properly
denied his petition for resentencing. (See, e.g., Verdugo, supra,
44 Cal.App.5th at p. 329; Edwards, supra, 48 Cal.App.5th at
pp. 674–675; Tarkington, supra, 49 Cal.App.5th at pp. 896–898.)
B. Defendant did not demonstrate that he was denied
effective assistance of counsel
Regardless, defendant has not demonstrated that he
received ineffective assistance of counsel. To establish ineffective
assistance of counsel, “‘“a defendant must show that (1) counsel’s
representation fell below an objective standard of reasonableness
under prevailing professional norms, and (2) counsel’s deficient
performance was prejudicial, i.e., there is a reasonable
probability that, but for counsel’s failings, the result would have
been more favorable to the defendant. [Citation.]”’” (People v.
9
Rices (2017) 4 Cal.5th 49, 80.) “If a claim of ineffective assistance
of counsel can be determined on the ground of lack of prejudice, a
court need not decide whether counsel’s performance was
deficient.” (In re Crew (2011) 52 Cal.4th 126, 150; see Strickland
v. Washington (1984) 466 U.S. 668, 697 [“[i]f it is easier to dispose
of an ineffectiveness claim on the ground of lack of sufficient
prejudice, which we expect will often be so, that course should be
followed”].)
Here, defendant cannot establish either that defense
counsel’s performance was deficient or that he suffered any
prejudice as a result of the alleged poor performance in that no
reply brief was filed. Defense counsel was not required to file a
reply brief (§ 1170.95, subd. (c)), let alone one that would have
advanced a meritless argument simply to avoid being called
ineffective by appellate counsel (People v. Cunningham (2001) 25
Cal.4th 926, 1038). After all, as set forth above, the record of
conviction indisputably shows that the People prosecuted
defendant as the actual killer, and he was convicted as such.3
Defendant’s Motion for a Franklin Hearing
I. Relevant law
“[T]he California Legislature passed Senate Bill No. 260
(2013-2014 Reg. Sess.), which became effective January 1, 2014,
and enacted sections 3051, 3046, subdivision (c), and 4801,
subdivision (c), to provide a parole eligibility mechanism for
juvenile offenders.” (People v. Perez (2016) 3 Cal.App.5th 612,
618.) “In October 2015, the Legislature amended section 3051,
and effective January 1, 2016, anyone who committed his or her
3 It follows that counsel’s concession that defendant was the
actual shooter does not amount to an argument against his client.
10
controlling offense before reaching 23 years of age [became]
entitled to a youth offender parole hearing. (§ 3051, subd. (a)(1),
amended by Stats. 2015, ch. 471, § 1.)” (People v. Perez, supra, at
p. 618.) Under the revised section 3051, the Board of Parole
Hearings “shall complete all youth offender parole hearings for
individuals who were sentenced to indeterminate life terms and
who [became] entitled to have their parole suitability considered
at a youth offender parole hearing on January 1, 2016, by July 1,
2017.” (§ 3051, subd. (i)(2)(A).)
In Franklin, supra, 63 Cal.4th 261, a 16-year-old defendant
shot and killed another teenager and was eventually convicted
and sentenced to life in prison with the possibility of parole in 50
years. (Franklin, supra, at p. 268.) On appeal, he challenged his
sentence as a violation of the Eighth Amendment. While his
appeal was pending, the Legislature enacted sections 3051 and
4801 to provide a parole hearing during the 25th year of
incarceration for certain juveniles sentenced as adults. Because
the defendant in Franklin was entitled to such a hearing, the
Supreme Court determined that his Eighth Amendment
challenge was moot. (Franklin, supra, at pp. 276–277.) The
Franklin court remanded “the matter to the trial court for a
determination of whether [the defendant] was afforded sufficient
opportunity to make a record of information relevant to his
eventual youth offender parole hearing.” (Id. at p. 284; see also
People v. Rodriguez (2018) 4 Cal.5th 1123, 1131–1132 [remanding
the matter to allow the offender to make a thorough record of
factors relevant to his eventual youth offender parole hearing].)
Thereafter, our Supreme Court in In re Cook was tasked
with determining “whether a sentenced prisoner whose conviction
is final can seek the remedy of evidence preservation and, if so,
11
by what means.” (In re Cook (2019) 7 Cal.5th 439, 446–447
(Cook).) It held that the proper avenue to seek a Franklin
proceeding is through section 1203.01, which “provides that,
postjudgment, the trial court may generate, collect, and transmit
information about the defendant and the crime to the
Department of Corrections and Rehabilitation.” (Cook, supra, at
p. 447.)
Thus, “consistent with Franklin and the court’s inherent
authority, the offender shall have the opportunity to ‘place on the
record any documents, evaluations, or testimony (subject to cross-
examination) that may be relevant at his eventual youth offender
parole hearing.’” (Cook, supra, 7 Cal.5th at p. 458.)
That said, “[a]lthough Franklin mandates an opportunity
for evidence preservation, the trial court may ‘exercise its
discretion to conduct this process efficiently, ensuring that the
information introduced is relevant, noncumulative, and otherwise
in accord with the governing rules, statutes, and regulations.’
[Citation.] The court may, for example, require an offer of proof
regarding the evidence the offender seeks to present, so that it
can determine whether such evidence is relevant to youth-related
factors and meaningfully adds to the already available record.”
(Cook, supra, at p. 459.) “Finally, Franklin emphasized that the
purpose of the proceeding was to allow the offender to assemble
evidence ‘at or near the time of the juvenile’s offense rather than
decades later when memories have faded, records may have been
lost or destroyed, or family or community members may have
relocated or passed away.’ [Citation.]” (Cook, supra, at p. 459.)
Thus, trial courts “may” consider whether a Franklin proceeding
is unnecessary because it will not produce “fruitful evidence.”
(Cook, supra, at p. 459.)
12
II. Analysis
Applying these legal principles, we conclude that the trial
court did not err by denying defendant’s motion without
prejudice. By the time of defendant’s application for a Franklin
hearing, defendant had been incarcerated for more than 17 years
(since his arrest in 2002). The likelihood of being able to find
relevant materials relating to his youth is in doubt. And, his
bare-bones request for a Franklin hearing did not so much as
hint as to what kind of information he could gather and enter
into the record during the hearing. As Cook allows the trial court
to demand an offer of proof (Cook, supra, 7 Cal.4th at p. 459), the
denial without prejudice4 against the filing of a new request that
included such an offer of proof was certainly within the trial
court’s authority. (See, e.g., Farber v. Bay View Terrace
Homeowners Assn. (2006) 141 Cal.App.4th 1007, 1015 [“Denial of
a motion without prejudice impliedly invites the moving party to
renew the motion at a later date, when he can correct the
deficiency that led to the denial”].)
4 In neither his opening brief nor his reply brief does
defendant address the fact that the motion was denied without
prejudice.
13
DISPOSITION
The trial court’s orders denying defendant’s section 1170.95
petition and his request for a Franklin hearing are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_____________________, Acting P. J.
ASHMANN-GERST
We concur:
________________________, J.
CHAVEZ
________________________, J.
HOFFSTADT
14