Opinion
F075760
11-05-2019
THE PEOPLE, Plaintiff and Respondent, v. VICTOR ANGEL SANCHEZ, Defendant and Appellant.
Meredith J. Watts, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and A. Kay Lauterbach, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Madera Super. Ct. No. MCR051906B)
OPINION
APPEAL from a judgment of the Superior Court of Madera County. Dale J. Blea, Judge. Meredith J. Watts, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and A. Kay Lauterbach, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Appellant/defendant Victor Angel Sanchez pleaded guilty to premeditated attempted murder (Pen. Code, §§ 664/187, subd. (a)), with the enhancement that a principal personally and intentionally discharged a firearm (§ 12022.53, subd. (c); and count 2, active participation in a criminal street gang (§ 186.22, subd. (a)), with a prior strike conviction and a prior violent felony enhancement (§ 667.5, subd. (a)). He entered the pleas and admissions pursuant to an agreement that he would be sentenced to an aggregate term of 41 years and waive his appeal rights. The charges and convictions were based on defendant's role in a shooting where Gerardo Diaz-Rodriguez was shot in the neck and left a quadriplegic. Defendant and his accomplices mistakenly believed the victim was a member of a rival gang.
All further statutory citations are to the Penal Code unless otherwise indicated.
At the plea proceedings, defendant stipulated to the preliminary hearing transcript as stating the factual basis for his pleas and admissions. Thereafter, defendant filed a motion to withdraw his pleas and admissions, claimed there was no factual basis for his convictions, and he was under emotional distress at the time he pleaded guilty. The court denied the motion.
Defendant has filed an appeal and challenged the denial of his motion to withdraw his pleas. He again argues there was no factual basis for his convictions, and he was under duress when he pleaded guilty. He received a certificate of probable cause only as to the denial of his motion to withdraw. Defendant raises another issue that was not addressed by the certificate of probable cause and argues the matter must be remanded pursuant to Senate Bill No. 620, enacted after he was sentenced in this case, to allow the trial court to decide whether to exercise its discretion to strike the term imposed for the section 12022.53 firearm enhancement.
We affirm defendant's convictions and admissions and are compelled to remand the matter for the court to determine whether to exercise its discretion as to the section 12022.53 firearm enhancement.
FACTS
Given defendant's guilty plea, the following facts are from the joint preliminary hearing for defendant and his codefendants Oscar Reyes and Ponciana Soto, held by Judge Blea in July and August 2015, in which the parties stipulated to as the factual basis for his plea. In the record, Ponciana's last name has various spellings. We spell her last name as it is found in the first amended criminal complaint filed on July 7, 2015, and in the information filed on August 11, 2015.
The shooting
On June 26, 2015, Gerardo Diaz-Rodriguez rode his bicycle to Bill's Kwik Stop in Madera. A silver colored car passed in front of him at the market. Diaz-Rodriguez recognized the passenger as "Oscar," who gave him a dirty look.
At the preliminary hearing, Detective Gonzales testified that he interviewed Diaz-Rodriguez at the hospital shortly after the shooting, and Diaz-Rodriguez gave this account of what happened.
Diaz-Rodriguez later identified codefendant Oscar Reyes from a photographic lineup as the man who looked at him from the car's front passenger seat. Diaz-Rodriguez told a detective that the other people in the car were Reyes's friends, but he was unable to identify or describe any of the occupants. Diaz-Rodriguez had been having issues with Reyes for the past year. Every time Diaz-Rodriguez encountered Reyes at high school, Reyes bullied him and called him a " 'scrap,' " a derogatory term for a southern gang member. Diaz-Rodriguez said that about a week before this incident, one of Reyes's friends confronted him at Bill's Kwik Stop and robbed him of his cell phone.
Diaz-Rodriguez reported the silver car drove by him, then turned around and drove toward him. Diaz-Rodriguez got on his bicycle and started pedaling away from the store and the silver car. He realized the silver car was following him. Someone from the car fired several shots at him, but he was not hit.
Diaz-Rodriguez pedaled his bicycle as fast as he could to the nearby house of his friend Christian Espinoza, because he thought he could take refuge there. When he arrived, he jumped off his bicycle, ran toward the house, and tried to find cover. Codefendant Reyes got out of the silver car, followed him toward Espinoza's house, and fired several more gunshots at him.
Diaz-Rodriguez kept running. Reyes continued to fire at him. Diaz-Rodriguez was shot in the side of the neck, and he collapsed to the ground in front of Espinoza's house. The investigation
Espinoza's house was located in a northern gang area, but Diaz-Rodriguez was not affiliated with any criminal street gang.
At 7:18 p.m., Benny Torres, who lived across the street from Espinoza, called 911 and reported shots had been fired. At 7:21 p.m., several deputies from the Madera County Sherriff's Department responded to Espinoza's residence on Avenue 13 1/2.
Deputy Torres entered the house and found Diaz-Rodriguez lying on the living room floor, surrounded by people who were trying to apply pressure to a gunshot wound in his neck. Diaz-Rodriguez was taken to the hospital.
The bullet wound to Diaz-Rodriguez's neck left him paralyzed and a quadriplegic. Detective Gonzales interviewed Diaz-Rodriguez at the hospital and learned Reyes's identity.
Diaz-Rodriguez was 22 years old at the time of the sentencing hearing.
Detective Gonzales also interviewed Torres, who said he had been at his house across the street and he heard two loud pops consistent with a .22-caliber firearm. He went into his front yard and saw a grey Volkswagen hatchback type vehicle pull in front of Espinoza's residence and make a quick U-turn. Two people got out of the passenger side and chased Diaz-Rodriquez toward Espinoza's residence. They fired four to five shots at him using a weapon similar to a .22-caliber rifle.
Torres said he made eye contact with the driver and clearly saw his face. The driver shouted, " 'Hurry up. Hurry up. They're looking at me.' " The two people involved in the shooting got back into the passenger side of the car. They yelled out a celebratory scream, someone shouted, " 'Got that mother f[****]r,' " and the car sped away. Torres told Detective Gonzales that he could identify the driver if he saw him again.
Detective Rodriguez testified he showed a photograph of defendant to Torres. Torres initially said defendant looked familiar, but he was not sure. A few hours later, Torres called Detective Gonzales and said he thought about it, and defendant was the driver of the grey car. Torres said he had previously seen defendant in the neighborhood. Arrest of defendant and Reyes
At the preliminary hearing, Torres was called as a witness and testified he heard the gunshots and called 911. However, Torres testified he never saw the shooting, the gunman, the car's driver, or any suspects. At the hearing, Torres was asked to look at defendant and whether he was the driver. Torres said defendant was not the driver. Detective Gonzales then testified about Torres's prior statements, and that Torres told him about a visit he received from Norteño gang members who said Torres would be killed if he cooperated.
Later, on June 26, 2015, the deputies went to an apartment complex on East Cleveland where Reyes lived. A grey colored Volkswagen hatchback was parked in front of the apartment. Defendant and Reyes were arrested that day.
Torres was later shown a photograph of the car parked in front of the apartment complex, and video surveillance of the same car at Bill's Kwik Stop. Torres identified the grey car as the vehicle involved in the shooting. Gang-affiliation evidence
Detective Aguilar testified that the shooting occurred in the territory of the "Vario North Side Madera" gang, a subset of the Norteño gang.
Reyes was an active participant and a member of that Norteño gang, based on his specific Norteño-related tattoos and his prior admissions. Defendant was also an active participant in a Norteño gang based on his tattoos, self-admissions, and association with Reyes and other Norteño gang members in the months prior to the shooting. While defendant was in custody for this case, he attacked another juvenile who was connected to a Sureño gang.
There was no evidence Diaz-Rodriguez was a member of any gang. Reyes apparently believed he was a Sureño based on the insults Diaz-Rodriguez reported.
ADDITIONAL INFORMATION FROM LAW ENFORCEMENT REPORTS
The parties stipulated to the preliminary hearing transcript as the factual basis for defendant's pleas. As we will explain, defendant later moved to withdraw his pleas. In the course of that motion, the parties submitted investigative reports and other evidence as exhibits in their pleadings regarding defendant's motion to withdraw his pleas. The superior court relied on this evidence when it denied defendant's motion to withdraw his pleas. Arrest of defendant and Reyes
Shortly after the shooting, the deputies tracked down Reyes to an apartment complex and found the grey Volkswagen hatchback parked in front. Upon arriving at the apartment, they encountered both Reyes and defendant. The deputies initially detained defendant. Reyes started filming the incident using a cell phone that belonged to his girlfriend, Ponciana Soto. A deputy tried to detain Reyes, but he ran away. After a brief chase, Reyes was also detained. Reyes and Soto consented to a search of their apartment, where the deputies found an empty .22-caliber ammunition box that matched the caliber and brand used in the shooting.
During a postarrest interview, Reyes said he was at his apartment the night before the shooting with Ms. Soto and his brother, Christian Garcia. They briefly went out in the morning and had been in the grey car around 1:00 p.m. but returned to the apartment for the rest of the day and night. Ms. Soto was also interviewed and gave the same story. However, Ms. Soto's cell phone had numerous messages that she sent to Reyes that day, asking where he was and telling him to return home.
Defendant was also interviewed after he was arrested and admitted he went to Bill's Kwik Stop to buy milk. The surveillance videotape
The deputies reviewed the video surveillance film from inside and outside Bill's Kwik Stop. It showed Diaz-Rodriguez standing in front of the store at 7:02 p.m. At 7:11 p.m., a grey Volkswagen hatchback drove past Diaz-Rodriguez, and the front passenger-side window was open. The video showed Diaz-Rodriguez made eye contact with the person in the front passenger seat. At 7:12 p.m., Diaz-Rodriguez got on his bicycle and rode away from the store. At 7:13 p.m., Reyes walked to the front of the store and appeared to be looking for someone, went inside, and looked around without buying anything. Christian Garcia stood near the corner of the store, looked up and down the street, and appeared to be acting as a lookout. At 7:14 p.m., Reyes left the store and ran back to the car with Garcia. At 7:15 p.m., the grey Volkswagen left the store and went in the same direction as Diaz-Rodriguez's bicycle. Defendant's GPS data
Defendant was wearing a GPS ankle monitor at the time of the shooting. A detailed investigative report analyzed the GPS data compared to the surveillance video from Bill's Kwik Stop.
According to the pleadings in this case, defendant used a knife and committed a robbery when he was 14 years old; he admitted the robbery allegation in a juvenile petition. Defendant (born 1999) was still 14 years old when he joined with another member of a Norteño gang three months later and robbed a business while using a starter pistol.
Based on the second incident, defendant was charged and convicted as an adult of robbery in 2013 and served time in the California Youth Authority. He was released on parole when he was 16 years old in 2015, about two months before the shooting in this case, and placed on a GPS monitor.
At 5:52 p.m., defendant arrived at Reyes's residence, and he left at 6:25 p.m. After defendant left, the distance between each GPS reading indicated he was traveling inside a vehicle. At 7:01 p.m., the GPS report showed defendant was on a street near the market; at the same time, the store's video surveillance showed the grey vehicle turning onto that street in front of the market.
The GPS report corresponded with the surveillance video to show that from 7:02 p.m. to approximately 7:15 p.m., defendant was in the grey car as it drove past the market, turned around, drove past it again, stopped at the time that Reyes appeared to be looking for someone, and then headed in the same direction as Diaz-Rodriguez went on his bicycle.
At 7:18 p.m., the GPS report showed defendant was near the shooting scene. The GPS report further indicated that defendant left the area of the shooting at approximately 87 miles per hour. Defendant stopped at a location on Bend Street, and defendant arrived at Reyes's residence at 7:38 p.m.
The investigative report concluded that based on comparing defendant's GPS data and the surveillance video, defendant was inside the grey vehicle that Diaz-Rodriguez identified. Evidence found in the grey Volkswagen
The grey Volkswagen was searched pursuant to a warrant, and two live rounds and one spent round were found in the car. The rounds were the same caliber as the ammunition box found in Reyes's apartment and shell casings found at the shooting scene.
Defendant's fingerprints were found on the rearview mirror on the passenger side of the Volkswagen. Reyes's jail "kites"
In February 2016, Reyes was in custody at the Madera County Jail when correctional officers seized "kites," or notes, written in very small writing, that were determined to be written by Reyes and addressed to Norteño gang members in prison.
In one kite, Reyes wrote that he wanted to inform the readers about his work for the Norteño gang. He wrote about six different incidents where he joined with his brother and other named individuals and described specific driveby shooting incidents that he was involved in against "southsiders."
In this same kite, Reyes also wrote about an incident that occurred on June 26, 2015. Reyes, defendant, Christian Garcia, Carlos Moreno, and Estevan Hernandez "went on a hunt" in Hernandez's car. Reyes shot a "known associate of the VLM X3 gang in the neck with 22 caliber hollow tips he is paralyzed to where he cannot feel his extremities." "It is this case for which myself and [defendant] are fighting." Reyes wrote that he was a smart person and ready to be a leader.
In a second kite, Reyes again listed several incidents where he "worked" with other Norteño "sols" by firing at various rival gang members and described each incident in detail. He again wrote about the incident on June 26, 2015, when he was with his brother, defendant, Moreno, and Hernandez; they were in Hernandez's Volkswagen hatchback; Reyes saw a "southsider" who was on a bicycle; Reyes fired four to five rounds at the southsider from a .22-caliber semiautomatic rifle; the victim ditched his bicycle and ran; Reyes got out of the car and fired more shots; and the victim was shot and paralyzed.
In a third kite, Reyes wrote to someone that Christian Espinoza was going to testify against him, and Reyes directed the reader to "see what we can make happen, scare his ass...." Reyes also wrote that Benny Torres was "still testifying against the Lil Homie Victor Sanchez [defendant]! He was wanted! Times up for him!!"
THE CHARGES
On May 4, 2016, a first amended information was filed that charged defendant and codefendant Reyes with count 1, premeditated attempted murder of Diaz-Rodriguez, committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(5)); and count 2, active participation in a criminal street gang.
In counts 3 and 4, codefendant Ponciana Soto was separately charged with the felony of harboring and concealing Reyes, on June 26 and July 2, 2015 (§ 32). Special allegations for defendant
As to count 1, it was alleged as to defendant that a principal (Reyes) personally and intentionally discharged a firearm which caused great bodily injury (§ 12022.53, subds. (d), (e)(1)); a principal personally and intentionally discharged a firearm (§ 12022.53, subds. (c), (e)(1)); and a principal used a firearm (§ 12022.53, subds. (b), (e)(1)).
It was further alleged that defendant (born 1999) was 16 years of age when he committed count 1, it was committed for the benefit of a gang, and the offense was punishable by life in prison (Welf. & Inst. Code, § 707, subds. (b), (d)(1), (d)(2)(A), (d)(2)(C)(ii)).
As to count 1, it was alleged defendant had a prior juvenile adjudication for robbery (§§ 602, 211; Welf. & Inst. Code, § 707, subds. (d)(2)(C)(i)).
As to counts 1 and 2, it was alleged defendant had a prior serious felony conviction (§ 667, subd. (a)(1)) and a prior strike conviction (§ 667, subds. (b)-(i)) for robbery in 2013. Special allegations for Reyes
As to count 1, it was alleged that Reyes personally and intentionally discharged a firearm which caused great bodily injury (§ 12022.53, subds. (c), (d)); and personally used a firearm (§ 12022.5, subd. (a)(1), section 12022.53, subd. (b)).
PLEA PROCEEDINGS
On September 15, 2016, Judge Blea convened a hearing, and the parties stated a negotiated disposition had been reached for defendant's case.
The People moved to further amend the first amended information to add an enhancement under section 667.5, subdivision (a), that defendant was previously convicted of a violent felony, robbery, in 2013. The People also dismissed all the enhancements that made the charge a life offense, except for section 12022.53, subdivision (c), that a principal had personally and intentionally discharged a firearm. The court granted the People's motion.
Ms. Bitter, defendant's public defender, stated that defendant was going to plead guilty to the first amended information and admit the remaining allegations, as just amended, for a maximum possible term of 41 years. Ms. Carter, the prosecutor, agreed with the disposition, and said that defendant would also waive his appellate rights. Ms. Bitter concurred that defendant would waive his appellate rights.
The court reviewed the plea form that stated the above terms and conditions of defendant's plea. The form also stated defendant's decision to plead guilty was made freely and voluntarily, and he had not been induced to plead guilty by any promise except as stated in the negotiated disposition, for a maximum term of 41 years in prison, with all other charges and allegations to be dismissed, and waiver of his appellate rights. Defendant had initialed each paragraph and signed the form.
The court asked defendant if he understood the terms and conditions of the plea agreement and had enough time to talk to his attorney, and defendant said yes. The court asked if he had initialed each paragraph, signed the plea agreement, and understood the information in the agreement; defendant said yes.
The court advised defendant of his constitutional and statutory rights, and that he was waiving his appellate rights. Defendant said he understood and waived each right.
The prosecutor and defense counsel stipulated to the preliminary hearing transcript as the factual basis for the plea.
Defendant pleaded guilty to count 1, attempted premediated murder, and count 2, being an active participant in a criminal street gang. As to count 1, he admitted the section 12022.53, subdivision (c) firearm enhancement, that a principal personally and intentionally discharged a firearm. He admitted the section 667.5, subdivision (a) prior violent felony enhancement and the prior strike conviction.
The court found defendant had knowingly, intelligently, and voluntarily waived his constitutional and statutory rights, a factual basis existed for the plea, and he understood the nature of the charges and consequences of his plea. Disposition of codefendants' cases
Codefendant Reyes pleaded guilty to count 1, attempted premediated murder of Diaz-Rodriguez, and admitted a gang enhancement and an enhancement for personal use of a firearm (§ 12022.53, subd. (b)); and count 2, active participation in a criminal street gang. He waived his appellate rights and was sentenced to life with a minimum term of 25 years in prison.
Reyes also pleaded guilty in another case to the second degree murder of Fabian Hernandez and active participation in a criminal street gang, waived his appellate rights, and was sentenced to life with a minimum term of 15 years in prison, served concurrently to the term imposed in this case.
Codefendant Soto pleaded no contest to being an accessory after the fact in this case and was placed on probation.
Christian Garcia was separately charged and pleaded guilty to the attempted murder of Diaz-Rodriguez, with a gang enhancement and firearm enhancements (§ 12022.53, subds. (b), (e)) and also pleaded guilty to active participation in a criminal street gang. He waived his appellate rights and was sentenced to 15 years in prison. Reference to juvenile court
On December 12, 2016, the court granted the People's request to remand the matter to juvenile court to evaluate defendant for treatment in juvenile court given the recent passage of Proposition 57.
Defendant was 16 years old when he committed the offenses in this case. In November 2016, after he entered his pleas, the electorate passed Proposition 57, which "prohibits prosecutors from charging juveniles with crimes directly in adult court. Instead, they must commence the action in juvenile court. If the prosecution wishes to try the juvenile as an adult, the juvenile court must conduct what we will call a 'transfer hearing' to determine whether the matter should remain in juvenile court or be transferred to adult court. Only if the juvenile court transfers the matter to adult court can the juvenile be tried and sentenced as an adult. [Citation.]" (People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 303, fn. omitted.)
The superior court in this case correctly anticipated the California Supreme Court's ruling in Lara that Proposition 57 was retroactive "to all juveniles charged directly in adult court whose judgment was not final at the time it was enacted." (Lara, supra, 4 Cal.5th at pp. 303-304.)
On April 24, 2017, the superior court stated the juvenile court determined defendant was unsuitable for juvenile adjudication and returned defendant's case for sentencing. At the same hearing, defendant advised the court he had discharged Ms. Bitter, his appointed counsel, and substituted retained counsel Eugene Action. Action stated he would be filing a motion to withdraw defendant's plea.
MOTION TO WITHDRAW THE PLEA
On May 19, 2017, defendant filed a motion to withdraw his guilty pleas and admissions. The motion was supported by declarations from his family and investigative reports about the investigation.
Defendant argued that when he entered the pleas, he was emotionally distraught because of his father's unexpected death; he was in custody; and his request to attend the funeral services was denied.
Defendant further argued he should be able to withdraw his pleas because his attorney failed to conduct a proper investigation before he entered his pleas. Defendant argued that counsel should have realized there was no evidence he was driving the car since his fingerprints were found on the passenger side and not the driver's side of the grey car, defendant's family told his attorney that he did not know how to drive, and they would testify that he did not know how to drive since he had been incarcerated since he was 14 years old for robbery and had just been released prior to the shooting in this case.
Defendant questioned the validity of Torres's identification because Torres was only shown a single photograph of defendant - not a photographic lineup - and initially failed to identify defendant from that single photograph. Defendant cited to Torres's subsequent statement to a defense investigator, that he did not see the shooting and only heard the gunshots.
Defendant acknowledged that he was named in Reyes's jail kite as being in the car. However, he relied on a statement that Reyes made during his postarrest interview, that the officers should book the man who owned the car because he was driving it at the time of the shooting. Defendant asserted that Reyes identified Estevan Hernandez as both the owner of the grey car and the man who was driving it at the time of the shooting.
Defendant acknowledged the GPS report showed he was in the car during the shooting, but argued the report also showed that he could have gotten out of the car shortly after the shooting and did not accompany Reyes to another location. The People's opposition
On May 23, 2017, the People filed opposition to the motion to withdraw. The opposition summarized evidence from the preliminary hearing, the investigative reports, the surveillance video, and the GPS data, as set forth above.
The People argued defendant's pleas were not undermined by the evidence, and Torres identified him as the driver. While defendant's family claimed he did not know how to drive, they did not know what defendant did for the entirety of the time after he was released from custody. The People further argued that even if defendant was not the driver, there was sufficient evidence he was part of a conspiracy with members of the same criminal street gang to attempt to murder the victim, based on the mistaken belief that the victim was a member of a rival gang. The GPS data and surveillance video established defendant was in the grey car when the victim was chased and shot, Reyes's jail kites corresponded with the victim's description of the incident, and Reyes identified defendant in the jail kites as being in the car when he shot the victim.
The People noted that defendant faced multiple indeterminate terms based on the original charges, the strike allegation, and the firearm enhancement. The negotiated disposition for a determinate term of 41 years was appropriate based on the facts and circumstances of the case.
The People further argued defendant failed to state good cause to withdraw his pleas, and the hearing transcript showed he entered the pleas knowingly and voluntarily.
EVIDENTIARY HEARING
On May 26, 2017, Judge Blea, who conducted the preliminary hearing and defendant's plea hearing, held an evidentiary hearing on defendant's motion to withdraw his pleas. Testimony from defendant's family
Letitia Sanchez, defendant's mother, testified he lived with her for his entire life. Defendant went into custody when he was 14 years old and was released when he was 16 years old. He was arrested in this case about two months after he was released.
Ms. Sanchez testified defendant did not drive a car; he did not know how to drive an automatic or a stick shift; he had never been trained to drive a car; he never tried to drive her car; and she always had to drive him around. She worked during the day but never saw him get into a friend's car.
Ms. Sanchez testified that defendant's father died in August 2016, while defendant was in custody at the juvenile facility. She told defendant about his death. Shortly afterwards, she learned from the juvenile authorities that defendant had been placed in a "safety cell" because he was not eating and "he fell into depression." Defendant pleaded guilty a few weeks later.
Abelica Sanchez, defendant's aunt, testified that defendant was in custody when his father died. She contacted juvenile hall and tried to get him released for the funeral, but the request was denied. After his father's funeral, defendant sent a letter to his aunt, and wrote that he did not care anymore, nothing mattered, and "half of what he was was gone."
Defendant's aunt testified she spoke to defendant while he was in jail, and he said he did not trust his attorney. His aunt knew defendant was a member of the northern gang.
Defendant's aunt further testified that after defendant pleaded guilty, she advised his attorney that she had information that defendant was not driving the car and someone else was driving it. She received this information when she visited someone in prison and that person revealed the driver's identity. When she shared this information with defendant's attorney, the attorney replied that it did not matter and if she kept pushing the issue, defendant would end up in prison for the rest of his life.
During her testimony, the prosecutor asked defendant's aunt for the identity of the person who was driving the car. She replied, "I am not allowed to say." The prosecutor asked the court to direct her to respond. Defense counsel asked for a bench conference, after which the court held that any evidence about who was driving the car would be stricken from the record. Testimony from defendant's prior attorney
Bonnie Bitter represented defendant during pretrial proceedings and at the time of his plea. Ms. Bitter testified that she reviewed the entirety of discovery, and Torres was the only witness who said defendant was driving the car. The defense investigator contacted Torres, but he was not shown photographs of other possible suspects. Ms. Bitter did not have any evidence to indicate someone else was driving, and she did not form the conclusion that defendant was the driver. She discussed the evidence with defendant and tried to find out who else was in the car and the driver's identity. Defendant said he was not there, but he was reluctant to give any information because of how he had previously been treated in the system. Ms. Bitter tried to reach out to defendant, but he was always guarded. He never said who was in the car or driving.
Ms. Bitter testified she advised defendant that it was hard to get an acquittal in gang cases. She explained the possible outcomes of the case to defendant and left it to him to decide what to do. The People initially offered 30 years to life. Ms. Bitter tried to get a determinate term, so defendant would have a release date. She believed the ultimate offer of 41 years was "better than life" because she was concerned "about him ever being able to get out of custody if he took a life term" and had to go before a parole board. Ms. Bitter's consideration of the plea offers was not based on whether defendant was the driver, but whether he was a principal as a gang member committing a crime.
Ms. Bitter knew that defendant's father died while he was in custody. She also knew defendant was on "very restrictive placement" because of his behavioral issues, and she did not believe he was on a suicide watch. Stipulations and the parties' arguments
The court asked both attorneys if they agreed that defendant was in the grey car because it would be hard to dispute that fact given the GPS data. The prosecutor and defense counsel agreed defendant was in the car.
The parties stipulated that the court received a disc with a report about defendant's GPS data and the surveillance video from Bill's Kwik Stop. The disc with the GPS data was played during the hearing.
Defense counsel disputed whether defendant was driving since he was the youngest person in the vehicle, and the car's owner was also present. Defense counsel argued defendant was likely sitting in the back seat when Reyes shot the victim from the front passenger seat, and anyone in the car could have yelled the slurs after the shooting. Under those circumstances, counsel argued defendant was not guilty since mere presence was insufficient to be a principal or an aider and abettor.
Defense counsel argued Ms. Bitter never used any due diligence to discover the identity of the driver. Torres's identification was not reliable because he never looked at a photograph of Hernandez and later said he lied. Ms. Bitter's failure to investigate was prejudicial since defendant was sentenced to 41 years for "sitting in the back seat," and received a term longer than the sentence received by Reyes.
The prosecutor replied that even if defendant was not the driver, Reyes's jail kites showed defendant was in the car, all the occupants were members of the same gang, they were in a conspiracy to "hunt" for a Sureño, and it was not a random shooting. The People were not required to plead conspiracy in the information but could have relied upon it as a theory of guilt. Defendant also faced a harsher sentence than the other conspirators because he had a prior robbery conviction.
The court asked the parties to address defendant's argument about Reyes's postarrest interview, and whether Reyes said Hernandez, the owner of the car, was driving. The prosecutor said she had listened to the recording of Reyes's interview, Reyes mentioned Hernandez's name, and Reyes's actual quote was, " 'If you guys don't book that mother f[**]ker, I am going to be pissed.' " The prosecutor said Reyes made that statement as he repeatedly denied any knowledge or involvement in the shooting. Defense counsel disagreed and argued Reyes was instead implicating Hernandez in the shooting. The court said it would listen to the entire interview, and the parties stipulated for the court to receive the recording and transcript of the interview.
The court took the matter under submission. The court's denial of defendant's motion to withdraw
On June 2, 2017, the court denied defendant's motion to withdraw his guilty pleas and admissions and made lengthy factual and legal findings.
The court held defendant failed to establish by clear and convincing evidence that Ms. Bitter failed to investigate the case and whether defendant was seated elsewhere in the car and not in the driver's seat. The fact that defendant's family had never seen him drive a car, or were unaware that he knew how to drive, was "not conclusive evidence that he wasn't driving the vehicle on the evening of the shooting."
The court further held that "most importantly, it's of little consequence where [defendant] was seated in the vehicle if he is found to be an aider and abettor in the crimes." The court explained that the factors relevant to determining whether a person was an aider or abettor included "one's presence at the scene of the [incident], companionship, and conduct before or after the offense."
"The evidence in this case presents each of these factors: First, we know that [defendant] was present at the scene of the shooting. This is undisputed and cannot be credibly challenged given the data recovery from the GPS tracking device ....
"Second, the evidence is that [defendant] and [Reyes], the person who admitted to being the shooter, ... as indicated in both jail writings and in open court were members of the same criminal street gang.... [Defendant] was with [Reyes] both before and after the shooting at
[Reyes's] residence. That's the companionship. They were in the car together at the time of the shooting.
"Third, [defendant] was present in the car at the time of the shooting ... when Mr. Diaz Rodriguez was shot. [Reyes] explained [in the jail kite] ... that [Reyes], [defendant], and three others were quote, on a hunt, close quote, when they observed a person they believed to be a member of a rival criminal street gang. Reyes admitted to firing four to five rounds from a .22 caliber rifle at the victim from the car. When the victim attempted to flee, Reyes jumped out of the car, gave chase and fired eight or nine more rounds toward the victim, ultimately, striking him in the neck. There is no evidence that [defendant] was surprised or disputed in any of Reyes'[s] actions. In fact, [defendant] was identified as shouting a slur after the victim had been shot.
"Fourth, the GPS tracking device indicates that immediately after the shooting, [defendant] traveled in the vehicle to a residence on Bend Street, where he remained for about 15 minutes. Rather than separating from [Reyes] at that point ... [defendant] then traveled with him to Reyes'[s] residence where he remained for a period of time until he was later located and arrested." (Italics added.)
The court addressed defendant's argument that the jail kite written by Reyes contained unreliable information because Reyes was applying for a leadership role in a Northern prison gang and he could have embellished the incident. The court rejected this theory because Reyes was providing names as references for the prison gang leaders to verify what he had reported, and it would not have helped Reyes to embellish their conduct.
The court also addressed defendant's argument that Reyes implicated the owner of the car, Hernandez, as the driver during the shooting. The court stated it had listened to the entirety of Reyes's postarrest interview and found that when Reyes's statements were considered in context, Reyes did not say the owner of the car was driving it during the shooting. Reyes repeatedly denied that he was in the car, present during the shooting, or knew what happened, and told the officers that they should look at the owner of the car instead of him. The court further found that Reyes was not credible during his postarrest interview given his numerous denials that he was present at the shooting and rejected defendant's attempt to "pick a single statement out of a 100-minute interview and say that's the one time [Reyes] was truthful.... [Reyes] lied throughout the interview."
The court next found that the account of the shooting contained in Reyes's jail kites was credible and consistent with the GPS report, the surveillance video, and the victim's statements, including that Reyes and the others in the car were " 'on the hunt,' " the type and color of the vehicle, defendant was in the car, they suspected Diaz-Rodriguez was in a rival gang, the caliber of the bullet that hit the victim, where he was wounded, and that the gunshot wound left him paralyzed.
The court also rejected defendant's claim that his prior attorney, Ms. Bitter, failed to investigate the case. The court cited her testimony at the evidentiary hearing that defendant was reluctant to provide any information or identify the participants. The GPS report received by Ms. Bitter showed defendant was at the store and the shooting scene, and contradicted defendant's claim that he was not there. Ms. Bitter testified the People's initial offer was 30 years to life, and she successfully obtained a determinate term, so he would be eventually released from prison.
Finally, the court rejected defendant's claim that he entered his plea because he was under duress after his father's death. While defendant may have been placed on a suicide watch while in custody, there was no evidence about the reason for that decision. It would be pure speculation to find defendant entered his plea because he was upset about his father's death. "In fact, any such claim is contradicted by [defendant's] own representations to the probation officer ... where [he] represents ... that he was in good mental health."
"The evidence offered by [defendant] ... is anything but clear and convincing. To the contrary, the Court is convinced that the evidence establishes that justice is served by the negotiated disposition. [Defendant] has not met his burden to present evidence that the agreed-upon disposition is not fair or that the representation of his appointed counsel [was] inadequate or overcame his free will to enter a knowing, intelligent, and voluntary plea."
The court found defendant was an aider and abettor regardless of whether he was driving the car.
SENTENCING HEARING
Immediately after denying his motion to withdraw, the court conducted the sentencing hearing consistent with the plea agreement and imposed an aggregate term of 41 years.
As to count 1, attempted premediated murder, the court sentenced defendant to the upper term of nine years, doubled to 18 years as the second strike term, plus a consecutive term of 20 years for the section 12022.53, subdivision (c) firearm enhancement, and a consecutive term of three years for the section 667.5, subdivision (a) enhancement. As to count 2, active participation in a criminal street gang, the court imposed and stayed the upper term of six years.
The court imposed a $300 restitution fine (§ 1202.4, subd. (b)) and stayed the parole revocation fine; retained jurisdiction for victim restitution; imposed a $900 fine under section 672 to include all amounts listed on page eight of the probation report; and imposed a booking fee of $108.19 under Government Code section 29550.2.
The court stated defendant had waived his appellate rights but retained the right to appeal the denial of his motion to withdraw his plea.
On June 6, 2017, defendant filed a notice of appeal that challenged the validity of his pleas and admissions. On the same day, he requested and received a certificate of probable cause only as to the denial of his motion to withdraw his pleas and admissions.
DISCUSSION
I. Motion to Withdraw Plea; Good Cause
Defendant raises two issues as to why the court should have granted his motion to withdraw his plea. In this section, we will address defendant's argument that his motion and the evidence established good cause to withdraw the plea because he was suffering from duress and emotional distress over the death of his father, he was on suicide watch in jail, and as a result, his plea was not knowing, voluntary, and intelligent.
In issue II, post, we will address defendant's contention that the court should have granted his motion on a separate argument - that his attorney failed to investigate the factual basis for the plea, and the evidence and exhibits he introduced in support of his motion showed he was not the driver and therefore not guilty, and his attorney was ineffective for allowing him to plead guilty without conducting such an investigation.
A. Section 1018
A defendant's plea of guilty or no contest must be knowing, intelligent, and voluntary under the totality of the circumstances. (People v. Farwell (2018) 5 Cal.5th 295, 303-304; People v. Smith (2003) 110 Cal.App.4th 492, 500; People v. Aguirre (2011) 199 Cal.App.4th 525, 528.)
Section 1018 provides in relevant part: "On application of the defendant at any time before judgment or within six months after an order granting probation is made if entry of judgment is suspended, the court may, and in case of a defendant who appeared without counsel at the time of the plea the court shall, for a good cause shown, permit the plea of guilty to be withdrawn and a plea of not guilty substituted."
"To establish good cause to withdraw a guilty plea, the defendant must show by clear and convincing evidence that he or she was operating under mistake, ignorance, or any other factor overcoming the exercise of his or her free judgment, including inadvertence, fraud, or duress. [Citation.]" (People v. Breslin (2012) 205 Cal.App.4th 1409, 1416; People v. Dillard (2017) 8 Cal.App.5th 657, 665.) "The defendant must also show prejudice in that he or she would not have accepted the plea bargain had it not been for the mistake. [Citation.]" (People v. Breslin, supra, at p. 1416.)
" 'Guilty pleas resulting from a bargain should not be set aside lightly and finality of proceedings should be encouraged.' [Citation.]" (People v. Weaver (2004) 118 Cal.App.4th 131, 146.) A plea may not be set aside simply because the defendant has changed his or her mind. (People v. Nance (1991) 1 Cal.App.4th 1453, 1456.)
"The decision to grant or deny a motion to withdraw a guilty plea is left to the sound discretion of the trial court. [Citations.] 'A denial of the motion will not be disturbed on appeal absent a showing the court has abused its discretion.' [Citations.] 'Moreover, a reviewing court must adopt the trial court's factual findings if substantial evidence supports them.' [Citation.]" (People v. Breslin, supra, 205 Cal.App.4th at pp. 1415-1416; People v. Fairbank (1997) 16 Cal.4th 1223, 1254.) "In ruling on a motion to withdraw a plea, the trial court may take into account the defendant's credibility and his or her interest in the outcome of the proceedings. [Citation.]" (People v. Dillard, supra, 8 Cal.App.5th at p. 665.)
B. Analysis
The court did not abuse its discretion when it denied defendant's motion based on his duress argument, and defendant failed to meet his burden of showing clear and convicting evidence that his plea was not voluntary.
At the plea hearing, the court reviewed the change-of-plea form that defendant signed. In response to the court's questions, defendant stated he had signed the document and initialed each paragraph. The form included defendant's declarations that he was "in possession of all my faculties," his plea was being entered "freely and voluntarily," he understood the nature of his plea and his maximum sentence, and he realized that he had "additional time to think about this plea, and [did] not desire to seek additional time to think about this plea."
At the evidentiary hearing to withdraw his plea, defendant's mother and aunt testified he was upset and depressed about his father's death. They also claimed the jail placed him on a suicide watch shortly before he entered his plea. The defense failed to present any documentation to corroborate this assertion. Ms. Bitter, who represented defendant at the time, knew his father died while he was in custody. She also knew defendant was on "very restrictive placement" because of defendant's behavioral issues, but she did not believe he was on a suicide watch.
Defendant did not testify at the evidentiary hearing for the limited purpose of explaining his alleged mental state at the time of the plea or that he was acting under duress. Defendant did not submit a sworn declaration in support of his motion.
As the court noted, the probation report was prepared shortly after he entered his plea, and defendant told the probation officer that he was in good physical and mental health; there were no references to being on suicide watch. When defendant was in custody prior to his plea, he attacked another inmate who was connected to the rival Sureño gang; this likely corresponds to Ms. Bitter's statement that he was on a very restrictive placement and not on suicide watch.
Judge Blea conducted both the plea hearing and the hearing on the motion to withdraw his plea and found defendant's claim of duress was entirely speculative and that he had failed to show good cause by clear and convincing evidence. The court's factual findings are supported by substantial evidence. In addition, "[i]t is entirely within the trial court's discretion to consider its own observations of the defendant in ruling on such a motion" to withdraw his plea. (People v. Ravaux (2006) 142 Cal.App.4th 914, 918.) The court did not abuse its discretion when it denied his motion on this basis.
II. Motion to Withdraw; Ineffective Assistance
Defendant next argues that his motion to withdraw should have been granted because his attorney at the time of the plea failed to sufficiently investigate evidence that would have showed he was not the driver of the car, and thus not guilty of the charged offense. In making this argument, defendant effectively argues his attorney was prejudicially ineffective because she "seemed to think that [defendant] would be found a principal in this shooting ... simply because he was in the car, even if he were not the driver" under an aiding and abetting theory.
Defendant asserts he was not the driver, and thus not guilty as an aider and abettor, because his family testified at the evidentiary hearing that he did not know how to drive a car; Torres testified at the preliminary hearing that defendant was not the driver and disavowed his prior identification of defendant; defendant's fingerprints were only found on the passenger side of the car and not the driver's side; and Reyes's statements that implicated him in the jail "kites" were not reliable and outweighed by Reyes's postarrest statements that Hernandez, the owner of the car, was the driver. Defendant asserts that Ms. Bitter, his attorney at the time of the plea, failed to sufficiently investigate these matters which resulted in his plea.
A. Challenging the Factual Basis for a Plea
As a preliminary issue, we address with the People's contention that defendant cannot challenge the factual basis for his plea on appeal because he stipulated to the preliminary hearing as the factual basis, and also waived his appellate rights as part of his plea.
"A guilty plea convicts the defendant of the charged crime without proof at trial. [Citations.]" (People v. Voit (2011) 200 Cal.App.4th 1353, 1364 (Voit).) Section 1192.5 states in relevant part that at the time of the plea, the court shall also " 'cause an inquiry to be made of the defendant to satisfy itself that the plea is freely and voluntarily made, and that there is a factual basis for the plea.' [Citation.] 'While there is no federal constitutional requirement for this factual basis inquiry, the statutory mandate of section 1192.5 helps ensure that the "constitutional standards of voluntariness and intelligence are met." [Citation.]' [Citation.] The inquiry also protects against an innocent person entering a guilty plea and creates a record against possible appellate or collateral attack. [Citation.]" (Id. at p. 1365, fn. omitted.)
"Entering a plea of guilty or no contest has many serious consequences for a criminal defendant. One of them is its restriction on the available issues that can be raised on appeal." (Voit, supra, 200 Cal.App.4th at p. 1363.) "In order to appeal after a conviction by plea of guilty or nolo contendere, a defendant must obtain a certificate of probable cause from the trial court. [Citation.] 'Issues cognizable on an appeal following a guilty plea are limited to issues based on "reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings" resulting in the plea. [Citations.]' " (Id. at p. 1364.)
"However, a plea of guilty or no contest waives an appellate claim of the nature 'there is insufficient evidence supporting my plea.' We see no material difference between that assertion and an appellate claim that 'there is no factual basis for my plea.' We believe that these assertions are fundamentally equivalent, so that a plea of guilty or no contest forecloses an appellate challenge that the plea lacks a factual basis. Section 1192.5 requires a factual inquiry by the trial court, not by the appellate court. Particularly where a defendant not only personally pleads guilty or no contest but also personally or through counsel concedes the existence of a factual basis for his or her pleas, that defendant should not be allowed to create an appellate issue by simply changing his or her mind about the existence of a factual basis for the plea, without also establishing that this concession resulted from a mistake." (Voit, supra, 200 Cal.App.4th at pp. 1365-1366.)
B. Ineffective Assistance
The People are thus correct that a defendant is estopped from arguing on appeal that there is no factual basis for his plea. (Voit, supra, 200 Cal.App.4th at pp. 1358-1359.) This conclusion, however, does not end the analysis based on the arguments raised in this case.
While a defendant cannot directly challenge the factual basis for his plea on appeal, he is still entitled to the effective assistance of counsel during plea negotiations. (In re Alvernaz (1992) 2 Cal.4th 924, 933-934; In re Vargas (2000) 83 Cal.App.4th 1125, 1133.) As a result, if a defendant waives his or her appellate rights as a condition of entering a plea, he cannot also " 'waive the right to bring a claim for ineffective assistance of counsel in which he alleges ineffectiveness at the time he was entering the plea or ineffectiveness related to advice he received regarding the waiver. Ineffective assistance of counsel at those critical times would require a finding that the plea was not entered knowingly and voluntarily, which would in turn mean that a court could not enforce a waiver contained within that plea agreement. [Citations.] To hold such a waiver enforceable 'would deprive a defendant of the "opportunity to assert his Sixth Amendment right to counsel where he had accepted the waiver in reliance on delinquent representation." ' [Citation.]" (People v. Orozco (2010) 180 Cal.App.4th 1279, 1285.)
"It is well settled that where ineffective assistance of counsel results in the defendant's decision to plead guilty, the defendant has suffered a constitutional violation giving rise to a claim for relief from the guilty plea. [Citations.]" (In re Alvernaz, supra, 2 Cal.4th at p. 934.) "[I]n order successfully to challenge a guilty plea on the ground of ineffective assistance of counsel, a defendant must establish not only incompetent performance by counsel, but also a reasonable probability that, but for counsel's incompetence, the defendant would not have pleaded guilty and would have insisted on proceeding to trial," as set forth in Strickland v. Washington (1984) 466 U.S. 668. (In re Alvernaz, supra, 2 Cal.4th at p. 934.)
Similarly, "a claim of ineffective assistance of counsel in connection with the making of the waiver agreement cannot be barred by the agreement that is the product of the alleged ineffectiveness." (People v. Orozco, supra, 180 Cal.App.4th at p. 1285.)
As applied to this case, defendant stipulated to the preliminary hearing as the factual basis and waived his appellate rights as a condition of his plea. However, he is not foreclosed from arguing that his attorney was prejudicially ineffective for failing to sufficiently investigate his culpability prior to his entry of the plea, he received a certificate of probable cause on the denial of his motion to withdraw his plea, and his arguments are cognizable on appeal.
C. Analysis
Defendant's attorney was not prejudicially ineffective when she investigated the case prior to defendant entering his plea. First, we defer to the court's credibility findings and its rejection of the testimony from defendant's family that he did not know how to drive. Their testimony was based on defendant's custodial status between the ages of 14 and 16 years, and that he had only been on parole for two months before the attempted murder in this case. As the court noted, however, defendant was 16 years old, he had been out of custody for a sufficient time to know how to drive, and he was not in the constant presence of his family. There was no evidence defendant suffered from any physical or mental conditions that would have prevented him from learning or knowing how to drive a car.
Second, the absence of defendant's fingerprints on the driver's side of the vehicle does not eliminate him as the driver. At the crime scene, Torres stated he clearly saw the driver and could identify him. While Torres did not immediately identify defendant from the photograph, he eventually told the detective that he thought about it and was sure that defendant was the driver of the car. Torres made this identification shortly after the shooting, without knowing about the evidence from the GPS report and surveillance video that positively placed defendant in the car. After Torres disavowed this identification at the preliminary hearing, the detective testified that Torres had just admitted to him that Norteño gang members threatened him if he appeared at the hearing. The evidence about this threat corresponds to a statement in one of Reyes's jail kites, where he wrote to his fellow Norteño gang members that Torres was "still testifying against the Lil Homie Victor Sanchez [defendant]! He was wanted! Times up for him!!" (Use of all capital letters omitted.)
Next, the court rejected defendant's claim that Reyes implicated Hernandez as the driver of the car in his postarrest interview. During that interview, Reyes repeatedly denied that he was in the car or knew anything about the shooting. The detectives knew Reyes was lying because the victim instantly identified Reyes as the gunman who got out of the car, chased him to the house, and shot him. Reyes also told the detectives that they should be looking at Hernandez instead of him. In the context of Reyes's entire postarrest entire interview, we concur with the court's finding that when Reyes referred to Hernandez as both the owner and the driver, he did so as part of his false claim that he was not there.
1. Conspiracy/Aiding and Abetting
Defendant asserts that counsel's failure to investigate the factual basis was prejudicial because he was not the driver and thus was not culpable in the crime. As the court explained, however, defendant still would have been culpable as either a conspirator or an aider and abettor, even if he was not driving the car.
A party to a crime is either a principal or an accessory. (§ 30.) "All persons concerned in the commission of a crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission ... are principals in any crime so committed." (§ 31.)
"An aider and abettor is one who acts 'with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense.' [Citation.]" (People v. Chiu (2014) 59 Cal.4th 155, 161.) "[I]n general neither presence at the scene of a crime nor knowledge of, but failure to prevent it, is sufficient to establish aiding and abetting its commission. [Citations.] However, '[a]mong the factors which may be considered in making the determination of aiding and abetting are: presence at the scene of the crime, companionship, and conduct before and after the offense.' [Citation.]" (People v. Campbell (1994) 25 Cal.App.4th 402, 409; People v. Miranda (2011) 192 Cal.App.4th 398, 407.)
Section 31's definition of principals includes conspirators. Conspiracy is not a separate theory from aiding and abetting if supported by the evidence. (In re Hardy (2007) 41 Cal.4th 977, 1025; People v. Mohamed (2011) 201 Cal.App.4th 515, 523-524.) "One who conspires with others to commit a felony is guilty as a principal. [Citation.]" (In re Hardy, supra, 41 Cal.4th at p. 1025.) " '[C]onspiracy comprehends nothing that is not included in the definition of "who are principals." Liability attaches to anyone "concerned," however slight such concern may be, for the law establishes no degree of the concern required to fix liability as a principal.' [Citations.]" (People v. Mohamed, supra, 201 Cal.App.4th at p. 524.)
In addition, " '[c]onspiracy principles are often properly utilized in cases wherein the crime of conspiracy is not charged in the indictment or information. In some cases ... the prosecution properly seeks to show through the existence of conspiracy that a defendant who was not the direct perpetrator of the criminal offense charged aided and abetted in its commission. [Citations.]' [Citation.]" (People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1200, abrogated on other grounds by People v. Rangel (2016) 62 Cal.4th 1192, 1216.) "Conspiracy can itself be the basis of derivative liability quite apart from aiding and abetting principles. 'It is long and firmly established that an uncharged conspiracy may properly be used to prove criminal liability for acts of a coconspirator. [Citations.] "Failure to charge conspiracy as a separate offense does not preclude the People from proving that those substantive offenses which are charged were committed in furtherance of a criminal conspiracy ...." [Citation.]' [Citation.]" (People v. Hajek and Vo, supra, at pp. 1200-1201.)
Even if defendant was not driving, he still would have been culpable as either a conspirator or an aider and abettor, and his culpability would have been based on far more than his "mere presence" in the vehicle. In one of the jail kites, Reyes wrote that he was with defendant, Christian Garcia, Carlos Moreno, and Hernandez, they "went on a hunt" in Hernandez's car, Reyes shot a "known" rival gang member in the neck "with 22 caliber hollow tips he is paralyzed to where he cannot feel his extremities." "It is this case for which myself and [defendant] are fighting."
The data from defendant's GPS monitor corresponded with the surveillance video of the grey Volkswagen, and established that defendant was with Reyes for the entirety of the incident - from when Reyes left his apartment, to when the car drove to the market and waited while Reyes and his brother appeared to look around the store, when the car left the market and followed the victim to Espinoza's house, when the car stopped at Espinoza's house as Reyes shot the victim, and when the car rapidly accelerated away from the scene, briefly stopped on a street, and then parked at Reyes's apartment. Defendant was still there when the detectives arrived and found the Volkswagen parked in front of the apartment.
The evidence from the GPS report, surveillance, video, and Reyes's jail kites establishes defendant's culpability under either an aiding and abetting theory or conspiracy, regardless of whether he was the driver.
Ms. Bitter testified at the evidentiary hearing that defendant repeatedly told her that he was not in the car. She knew defendant was in the car based on the GPS data and the surveillance video, but she did not reach a conclusion of whether he was the driver. Ms. Bitter tried to reach out to defendant, but he was reluctant to give any information. Ms. Bitter testified that she was able to obtain an offer from the People for a determinate term rather than a life term, so that defendant would have an actual release date. Ms. Bitter's consideration of the plea offer was not based on whether defendant was the driver, but whether he was a principal as a gang member committing a crime.
We thus conclude that defendant's attorney was not prejudicially ineffective for purportedly failing to sufficiently investigate the factual basis for his culpability prior to the entry of his plea. Even if defendant was not the driver of the car, the evidence that had been provided to his attorney established that he was culpable as an aider and abettor and/or in a conspiracy in the attempted murder of the victim.
III. The Firearm Enhancement
Defendant was initially charged with multiple firearm enhancements and faced an indeterminate life term. As part of the plea agreement, the People dismissed several firearm allegations, and defendant admitted the remaining allegation pursuant to section 12022.53, subdivision (c), that a principal (Reyes) personally and intentionally discharged a firearm (§ 12022.53, subd. (c).) Also pursuant to the plea agreement, the court imposed a consecutive term of 20 years for the firearm enhancement.
Defendant contents that the matter must be remanded for resentencing because after his sentencing hearing, Senate Bill No. 620 was enacted which amended section 12022.53 to allow the court to exercise discretion and decide whether to strike the enhancement.
A. Senate Bill No. 620
Defendant's sentencing hearing was held on June 2, 2017. At that time, imposition of firearm enhancements under sections 12022.5 and 12022.53 was mandatory and could not be stricken in the interest of justice pursuant to section 1385 or any other provision of law. (People v. Thomas (1992) 4 Cal.4th 206, 213-214; People v. Felix (2003) 108 Cal.App.4th 994, 999; People v. Sinclair (2008) 166 Cal.App.4th 848, 852-853; People v. Kim (2011) 193 Cal.App.4th 1355, 1362-1363.)
On October 11, 2017, Governor Brown signed Senate Bill No. 620, effective January 1, 2018. (2017-2018 Reg. Sess.) Senate Bill No. 620 amended sections 12022.5 and 12022.53 to give discretion to the trial court to strike firearm enhancements in the interest of justice. Both these statutes now state:
"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. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law." (§ 12022.5, subd. (c); § 12022.53, subd. (h).)
Defendant and the People agree that Senate Bill No. 620 amendments apply retroactively to cases not yet final on appeal. (In re Estrada (1965) 63 Cal.2d 740, 746; People v. Francis (1969) 71 Cal.2d 66, 75-76; People v. Brown (2012) 54 Cal.4th 314, 323.) They disagree as to whether the matter must be remanded for the court to consider whether to exercise its discretion in a case where defendant admitted the firearm enhancement and received the accompanying 20-year term as conditions of his negotiated plea.
B. Retroactivity and Plea Agreements
Defendant contends that despite the plea agreement, this case must be remanded so the court has the opportunity to decide whether to exercise its discretion and strike the 20-year term imposed for defendant's admission to the section 12022.53, subdivision (c) firearm enhancement.
The People concede that the amendment to section 12022.53 is retroactive and potentially applicable to this case. However, the People argue this matter cannot be remanded because defendant agreed to admit the enhancement and the term imposed pursuant to the terms of the plea agreement. The People further argue that defendant failed to obtain a certificate of probable cause to address this issue.
In Doe v. Harris (2013) 57 Cal.4th 64, the court addressed whether " 'the law in effect at the time of a plea agreement bind[s] the parties or can the terms of a plea agreement be affected by changes in the law?' " (Id. at p. 66.) The court held:
"[T]he general rule in California is that a plea agreement is ' "deemed to incorporate and contemplate not only the existing law but the reserve power of the state to amend the law or enact additional laws for the public good and in pursuance of public policy...." ' [Citation.] It follows, also as a general rule, that requiring the parties' compliance with changes in the law made retroactive to them does not violate the terms of the plea agreement, nor does the failure of a plea agreement to reference the possibility the law might change translate into an implied promise the defendant will be unaffected by a change in the statutory consequences attending his or her
conviction. To that extent, then, the terms of the plea agreement can be affected by changes in the law." (Id. at pp. 73-74.)
In Harris v. Superior Court (2016) 1 Cal.5th 984, the court held a plea agreement survives application of the new law enacted by Proposition 47, and the prosecution is "not entitled to set aside the plea agreement when a defendant seeks to have his sentence recalled under Proposition 47." (Id. at p. 993.) "The resentencing process that Proposition 47 established would often prove meaningless if the prosecution could respond to a successful resentencing petition by withdrawing from an underlying plea agreement and reinstating the original charges filed against the [defendant]." (Id. at p. 992.) "One of Proposition 47's primary purposes is to reduce the number of nonviolent offenders in state prisons, thereby saving money and focusing prison on offenders considered more serious under the terms of the initiative. [Citations.] Accepting the People's position [that the prosecution should be allowed to withdraw from the plea agreement] would be at odds with that purpose.... 'If a reduction of a sentence under Proposition 47 results in the reinstatement of the original charges and elimination of the plea agreement, the financial and social benefits of Proposition 47 would not be realized, and the voters' intent and expectations would be frustrated.' " (Ibid.)
In People v. Hurlic (2018) 25 Cal.App.5th 50 (Hurlic), the court relied on Harris and Doe, and held that "[u]nless a plea agreement contains a term requiring the parties to apply only the law in existence at the time the agreement is made," the defendant's plea agreement will be " 'deemed to incorporate' the subsequent enactment of Senate Bill No. 620 ... and thus give defendant the benefit of its provisions without calling into question the validity of the plea." (Hurlic, supra, at p. 57, fn. omitted.)
Hurlic further held the defendant did not require a certificate of probable cause to raise the appellate argument that Senate Bill No. 620 and the amendments to section 12022.53 applied to his case. The court explained that a certificate of probable cause is not required "when the defendant's challenge to the agreed-upon sentence is based on our Legislature's enactment of a statute that retroactively grants a trial court the discretion to waive a sentencing enhancement that was mandatory at the time it was incorporated into the agreed-upon sentence[.]" (Hurlic, supra, 25 Cal.App.5th at p. 53.)
Defendant's plea agreement in this case was thus subject to future changes in the law, he was not required to obtain a certificate of probable cause, and the matter must be remanded for resentencing. In addition, the subsequent enactment of Senate Bill No. 620, and the amendment of section 12022.53, did not invalidate the plea agreement.
The California Supreme Court has granted review in a series of cases about whether a certificate of probable cause is required to address this issue. One set of cases held that a defendant convicted by plea who agrees to a specific term for a firearm enhancement may not seek a remand under Senate Bill No. 620 without obtaining a certificate of probable cause. (People v. Fox (2019) 34 Cal.App.5th 1124, 1126-1127 (Fox), review granted July 31, 2019, S256298; see also People v. Galindo (2019) 35 Cal.App.5th 658, 662-663, review granted Aug. 28, 2019, S256568 [adopting Fox's analysis to deny remand for resentencing under Senate Bill No. 1393 (2017-2018 Reg. Sess.)].) Another set of cases addressed whether a certificate of probable cause is required to enable a defendant to rely on a retroactive change in the law to challenge a negotiated sentence. (People v. Stamps (2019) 34 Cal.App.5th 117, review granted June 12, 2019, S255843; People v. Kelly (2019) 32 Cal.App.5th 1013, review granted June 12, 2019, S255145.)
The People assert the matter should not be remanded because there is no reason to believe the court will strike the firearm enhancement. In People v. McDaniels (2018) 22 Cal.App.5th 420, the court addressed whether remand was required to allow the trial court to consider if it would exercise discretion after the enactment of Senate Bill No. 620 to strike a firearm enhancement. (Id. at pp. 424-428.) The court held remand was required in that case, but also found: "To be sure, the egregiousness of a defendant's crimes, a defendant's criminal history, and the court's sentencing options and rulings may prompt the court to express its intent to impose the maximum sentence permitted. When such an expression is reflected in the appellate record, a remand would be an idle act because the record contains a clear indication that the court will not exercise its discretion in the defendant's favor. [Citation.] But we believe a remand is necessary when there is no such clear indication of the trial court's sentencing intent. [Citations.]" (Id. at p. 427.)
In this case, the court imposed the sentence consistent with the plea agreement and did not make any additional findings, and we cannot say there is a clear indication that remand will be an idle act.
We, therefore, remand the matter for the trial court to determine in the first instance whether to exercise its new statutory discretion to strike the firearm enhancements in this case under section 12022.53, subdivision (h). By remanding the matter, however, we do not find that the trial court must strike the enhancement, but only that the trial court shall consider whether to exercise its discretion pursuant to the newly enacted statutory provisions.
DISPOSITION
The matter is remanded for the trial court to determine whether to exercise its discretion pursuant to section 12022.53, subdivision (h) and strike the firearm allegation. In all other respects, the judgment is affirmed.
/s/_________
POOCHIGIAN, J. WE CONCUR: /s/_________
HILL, P.J. /s/_________
SMITH, J.