Opinion
H047530
12-15-2020
THE PEOPLE, Plaintiff and Respondent, v. JUAN SALAZAR, JR., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. No. SS121859 )
In 2014, a jury convicted defendant Juan Salazar, Jr. of two counts of first degree murder, among other crimes. Jurors also found true two allegations that Salazar personally and intentionally discharged a firearm causing death, within the meaning of Penal Code section 12022.53, subdivision (d). The trial court sentenced Salazar to a term of 100 years to life in prison; that term included two consecutive 25-years-to-life terms for the personal use of a firearm enhancements, as was statutorily required at the time of Salazar's sentencing. While Salazar's appeal was pending, section 12022.53, subdivision (h) was amended to empower the trial court "in the interest of justice pursuant to Section 1385 and at the time of sentencing, [to] strike or dismiss an enhancement otherwise required to be imposed by this section." (Stats. 2017, ch. 682, § 2.) In Salazar's first appeal, we rejected his challenges to his convictions but reversed and remanded for resentencing People v. Salazar (May 31, 2018, H041724) [nonpub. opn.]) (case No. H041724). Among other things, we directed the trial court on remand to exercise its new discretion under section 12022.53, subdivision (h) during resentencing.
All further statutory citations are to the Penal Code unless otherwise indicated.
On remand, the trial court declined to strike the firearm enhancements and again sentenced Salazar to 100 years to life in prison. Salazar now argues that the trial court abused its discretion in refusing to strike the two firearm-use enhancements. Specifically, he faults the court for failing to review the original probation report, discounting its exercise of discretion as futile, making unsupported factual findings about the nature of the crimes, and failing to consider mitigating factors. He also requests that the matter be remanded to allow the trial court to exercise discretion to impose a lesser section 12022.53 gun-use enhancement. Because we agree that the trial court relied on incorrect facts, we reverse and remand for resentencing.
I. BACKGROUND
We take the facts from our prior opinion in case No. H041724, where they are set forth more fully, as well as from the record in that appeal. On our own motion, we take judicial notice of our prior opinion and of the record in case No. H041724. (Evid. Code, §§ 452, subd. (d), 459.)
In 2012, Salazar, a member of the Sureño gang La Esperanza Trece (Espe), attended a gang meeting. At that meeting, Enrique Lopez accused fellow gang member Daniel "Frosty" Fraga of being "no good." According to a number of Espe members who attended the meeting, at Lopez's urging, the gang held a vote to determine whether Frosty was no good, meaning he could be killed by members of Espe. There was some disagreement among the Espe witnesses as to the outcome of the vote. Three testified that the group decided Frosty was no good. Two testified that the majority agreed Frosty was no good but that no final decision was made, either because they were awaiting proof or because only gang members in county jail can decide whether a person is no good. And two testified there was no vote; however, one of those witnesses (Lopez's brother, known as Dodger) admitted having told police that the group had decided to kick Frosty out of the gang because he was no good. A gang expert testified that every Sureño and every member of the Mexican Mafia has an obligation to kill former Sureños who they know have been deemed no good. The Espe witnesses agreed that someone who is no good can be killed by members of their gang.
Later on the day of the no good vote, Frosty—accompanied by his friend Hector "Osito" Reyes—confronted Lopez at the home of Salazar's then-girlfriend. Lopez, Salazar, and the other Espe members who had participated in the no good vote were hanging out there. Frosty punched Lopez. Dodger came to Lopez's defense, punching Frosty. An Espe member known as Shadow tried to break up the fight between Frosty, Lopez, and Dodger. Osito hit Shadow in the head with the butt of a gun. When Dodger punched Osito, Osito beat Dodger in the head with the gun.
At some point, Frosty armed himself with eight-inch-long scissors that were in the home. He stabbed Lopez in the arm. After being stabbed, Lopez fled the house. Salazar's girlfriend testified that she saw Frosty stab Salazar in the back with a knife and that he was bleeding significantly later. No one else testified that Salazar was involved in the fight; Dodger, Cartoon, Trips, and Shadow each testified that they did not see Salazar involved in the fight.
Shadow ran away from an armed Osito into the bathroom; Osito followed, as did Frosty, still armed with the scissors. Shadow then fled the bathroom and fell to the floor in the hall outside the bathroom. Shadow heard Osito's gun fall to the ground. The magazine was found near the entrance to the bathroom; the gun itself was found protruding from under a couch in the living room.
From the hallway outside the bathroom, Salazar fired nine bullets at Frosty and Osito, killing them. Witnesses offered differing accounts of the shooting. Shadow's testimony suggested that the shooting occurred moments after he fell to the ground. Salazar's girlfriend testified that Salazar was standing outside the bathroom when Shadow emerged and fell to the ground. She said that Salazar then walked over to the couch in the living room, returned to outside the bathroom, and shot after Frosty came out of the bathroom towards him. Dodger testified that Salazar came down the stairs armed with a gun, walked towards the bathroom, stood outside the bathroom for four seconds, fired once, paused for three seconds, and then fired at least one more shot. A gang member named Cartoon likewise testified that Salazar came down the stairs holding a gun. Cartoon heard Salazar's girlfriend tell Salazar "don't, don't do it" as she followed him down the stairs. According to Cartoon, Salazar told Frosty and Osito to get into the bathroom. Three seconds passed. Then Cartoon heard five to seven gunshots.
The forensic pathologist who performed autopsies on Frosty and Osito testified that Frosty suffered three gunshot wounds and Osito suffered six or seven gunshot wounds. Some of each victim's gunshot wounds had a downward trajectory, which the forensic pathologist opined indicated the victims may have been bending over or on the floor when they sustained those wounds. A supervising forensic evidence technician who performed crime scene and evidence processing in this case testified that the victims' bodies were found near the back wall of the bathroom. Frosty was found holding eight-inch-long scissors.
After the shooting, Salazar fled to Mexico.
B. Procedural History
The Monterey County District Attorney charged Salazar and Lopez with two counts of murder each (counts 1-2; § 187, subd. (a)) and with the substantive offense of active participation in a criminal street gang (count 6; § 186.22, subd. (a)). They also were charged with battery with serious bodily injury (count 3; § 243, subd. (d)); assault with force likely to produce great bodily injury (count 4; § 245, subd. (a)(4)); and child abuse (count 5; § 273a, subd. (a)) arising out of the "checking" of a 17-year-old member of the gang as punishment for dating a Norteño. Gang enhancement allegations were attached to counts 1 through 5.
"Checking"—a 13-second beating of a gang member by fellow gang members—is a common form of discipline in Sureño gangs. --------
A jury trial took place in August and September 2014. Salazar's defense to the murder charges was that he acted in self-defense or in defense of another, Shadow. The jury rejected those defenses and convicted Salazar of first degree murder of Frosty and Osito. Salazar was convicted on all of the other charges as well and jurors found true the gang allegations.
The trial court sentenced Salazar to a term of 100 years to life in prison. That terms included two consecutive 25-years-to-life terms for the personal use of a firearm enhancements (§ 12022.53, subd. (d)).
In a prior opinion, we rejected Salazar's appellate challenges to his convictions but reversed to correct a sentencing error, to permit the trial court to exercise its discretion as to whether to strike the firearm enhancements, and to allow Salazar to make an adequate record for a future youth offender parole hearing.
On remand, Salazar's counsel filed a sentencing memorandum requesting that the court strike the firearm enhancements based on Salazar's "level of emotional maturity, the lack of opportunity afforded to him by the circumstances of his upbringing, as well as the fact that he was stabbed by one of his two victims in a way that did not amount to a defense but nevertheless immediately precipitated the shooting." Both in support of that request and for use at a future youth offender parole hearing, counsel also submitted a confidential psychological evaluation of Salazar, a summary of a defense investigator's conversation with Salazar's mother, and Salazar's school records. The memorandum did not include a factual summary of the offenses. The prosecutor did not file a response.
At a hearing on October 31, 2019, the prosecutor argued that "the purpose of the statute was to increase punishment when someone uses a firearm to murder. This was one in which he went and got a gun. So it wasn't like the circumstances presented themselves and he just had a gun and reacted. He went and got it, and marched two people back into the bathroom where they were no longer a danger to him, and then fired not just a single shot in panic, but multiple shots, executing two human beings . . . . [T]he People see no reason to strike" the enhancements.
The trial court ruled as follows: "I do agree with the People here. This was, I found—I think this was the first homicide case I heard here as a trial judge, and it really—and I've heard numerous, obviously, since then. But it really stays in my mind because of the brutal way these two—and execution really is the right word—these two victims were killed. [¶] Mr. Salazar ordered them into the bathroom. They were defenseless, and then just summarily executed them. It really was a brazen, calculated, premeditated, deliberate killing that I think the enhancements are appropriate. So I'm going to deny the request to strike those enhancements." Once again, the court imposed a 100-years-to-life prison term.
Salazar timely appealed.
II. DISCUSSION
Salazar maintains that the trial court abused its discretion in various ways, including by basing its decision not to strike the firearm enhancements on an inaccurate characterization of the shooting. Among other things, he challenges the court's description of Frosty and Osito as "defenseless" at the time of the shooting.
Generally, "complaints about the manner in which the trial court exercises its sentencing discretion and articulates its supporting reasons cannot be raised for the first time on appeal." (People v. Scott (1994) 9 Cal.4th 331, 356 (Scott).) "Such errors are essentially factual" and are "forfeited if not raised at the sentencing hearing." (People v. Trujillo (2015) 60 Cal.4th 850, 856-857.) Salazar's counsel did not object at the sentencing hearing. However, the Attorney General does not argue that the claim is forfeited and addresses it on the merits. We shall do the same.
We review a trial court's decision whether to strike a firearm enhancement for abuse of discretion. (People v. Pearson (2019) 38 Cal.App.5th 112, 116.) "A trial court abuses its discretion when the factual findings critical to its decision find no support in the evidence." (People v. Cluff (2001) 87 Cal.App.4th 991, 998.) "When th[e trial] court errs in identifying or articulating its sentencing choices, the reviewing court has no choice but to remand the matter for resentencing unless it finds the error nonprejudicial, i.e., it is 'not reasonably probable that a more favorable sentence would have been imposed in the absence of the error.' [Citation.]" (Scott, supra, 9 Cal.4th at p. 355.)
The evidence at trial showed that Frosty was holding the eight-inch-long scissors he had used as a weapon on Lopez at the time of his death. Accordingly, Frosty was not defenseless; he was armed with a stabbing weapon he had shown himself willing to use. The trial court abused its sentencing discretion by relying on a fact unsupported by the evidence—namely, that the victims were defenseless.
Reversal is required unless we conclude that the error was not prejudicial. (Scott, supra, 9 Cal.4th at p. 355.) We cannot reach that conclusion here. Because the victims' supposed defenselessness was one of the few facts the trial court expressly relied on in declining to strike the enhancements, it is reasonably probable that a more favorable sentence would have been imposed in the absence of the error. We therefore must reverse and remand for resentencing, and we need not reach Salazar's other appellate claims.
We express no opinion as to how the trial court should exercise its discretion on remand.
III. DISPOSITION
The judgment is reversed and remanded to the trial court for resentencing.
/s/_________
ELIA, ACTING P.J. WE CONCUR: /s/_________
BAMATTRE-MANOUKIAN, J. /s/_________
DANNER, J.