People v. Escamilla
| Decision Date | 03 April 2020 |
| Docket Number | B294041 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. SERGIO ESCAMILLA, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BA450616)
APPEAL from a judgment of the Superior Court of Los Angeles County, Craig J. Mitchell, Judge. Affirmed with directions.
Rudolph J. Alejo, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Acting Assistant Attorney General, Scott A. Taryle and Michael Katz, Deputy Attorneys General, for Plaintiff and Respondent.
____________________ A jury convicted defendant and appellant Sergio Escamilla (Escamilla) of carjacking (Pen. Code,1 § 215, subd. (a)), possession for sale of heroin (Health & Saf. Code, § 11351), and possession for sale of methamphetamine (id., § 11378). The jury found true an allegation that during the carjacking, Escamilla personally used a firearm (§ 12022.53, subd. (b)). The trial court sentenced Escamilla to a total term of 16 years in state prison.
On appeal, Escamilla contends: (1) the trial court violated his due process rights when it instructed the jury, pursuant to CALCRIM No. 315, to consider an eyewitness's level of certainty; (2) his attorney was ineffective for failing to request mental health diversion; and (3) pursuant to People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), the trial court erred in failing to hold an ability-to-pay hearing prior to imposing fines and fees.
Escamilla further contends, and the Attorney General agrees, that in light of Senate Bill Nos. 620 and 136, the matter must be remanded to allow the trial court to exercise its discretion strike the firearm enhancement imposed under section 12022.53, and to strike the one year prior prison term enhancement imposed under section 667.5, subdivision (b).
We affirm the judgment of conviction, but remand to allow the trial court to exercise its discretion with respect to imposition of the firearm enhancement and to strike the prior prison term enhancement. In all other respects, the judgment is affirmed.
In the early morning hours of September 27, 2016, Oscar S. came home and parked his BMW on the street. A black four-door sedan pulled up behind him. Oscar S. shut off the engine, and tried to get out of his car, but was unable to do so because the door was being blocked from the outside.
A man, later identified as Escamilla, pointed a gun at Oscar S., and asked where he was from. Oscar S. replied, "[N]owhere." Escamilla ordered Oscar S. to get out of the car, but leave his keys and cell phone. As he got out of the car, Oscar S. felt the metal barrel of the gun press into his back. Escamilla got in Oscar S.'s car and turned on the engine. Oscar S. then saw a passenger in the black sedan jump into the driver's seat and proceed to drive off "really slowly" in order to, what appeared to Oscar S. "make sure the [BMW] got away."
Oscar S. called 911. When police arrived, Oscar S. told them his cell phone number and part of his license plate number. The police used a "find my phone" internet program that showed that the cell phone was in the vicinity of 102nd Street and Larch Avenue in Inglewood. Police drove there and spotted Oscar S.'s BMW blocking the driveway of a residence. As police knocked on the door of the house, they were alerted that two young men had entered a residence two houses away.2 Police proceeded to thesecond residence and, after speaking to an older male, were directed to a back house where they ordered the occupants out of the house. Three men complied and emerged from the house. One of the men was accomplice (and former codefendant) John Sanchez.3
Meanwhile, another officer spotted two additional men running from the house. One of the men was Escamilla, who was chased by an officer until the officer lost sight of him. A K-9 team with search dogs subsequently found Escamilla hiding in the backyard of a residence a block from where the officer lost sight of him.4 Escamilla was then arrested and taken into police custody.
Later that day, Oscar S. identified John Sanchez in a one-man in-field show up. The police showed Oscar S. two other men before they presented Sanchez. Oscar S. told police that Sanchez was the man who drove away the car that pulled behind Oscar S.'s car at the crime scene. Oscar S. also identified Sanchez's photo at trial as the same man.
The day after the carjacking, Oscar S. identified Escamilla in a six-pack photo line-up.5 Oscar S. wrote on the lineup documents that Escamilla "looks like the one that stole my car and pointed a gun at me but had tattoos on both sides of his neck." Escamilla had neck tattoos. Oscar S. also identified Escamilla at trial as the carjacker.
Police found a black Ford Focus sedan parked across the street from the back house in Inglewood where Escamilla and the other males were found. The police discovered the vehicle was rented by Escamilla's mother who had provided the rental car company with the same home address Escamilla gave to police when he was booked and arrested for the instant offense. The home address was in Venice, not Inglewood. The parties stipulated that Escamilla's DNA was consistent with DNA found in that rental car.
Around the time police were chasing Escamilla, P.M. saw a man standing by the bed of the family pick-up truck. P.M. and her husband later found a backpack containing drugs in the bed of the truck. The backpack was a red and blue "Louis Stewart" bag with the word "Paris" written across the front; it contained individual bindles of methamphetamine and heroin.
P.M. could not tell if Escamilla was the man standing near her husband's truck. The prosecutor, however, introduced a photograph of Escamilla wearing the same backpack on a prior occasion.
Escamilla did not present any testimony. The defense rested without calling any witnesses.
Escamilla was charged with carjacking (§ 215, subd. (a)), possession for sale of heroin (Health & Saf. Code, § 11351), and possession for sale of methamphetamine (id., § 11378), with allegations that he personally used a firearm during the carjacking (§ 12022.53, subd. (b)). The information further alleged that Escamilla served two prior prison terms (§ 667.5, subd. (b)).
On May 10, 2017, the jury convicted Escamilla of all charges and found true the firearm-use allegation. Escamilla admitted one of the prior prison term allegations.
On September 12, 2018, the trial court sentenced Escamilla to a total term of 16 years in state prison: the five-year mid term for the carjacking, plus 10 years for the firearm-use allegation, plus one year for the prior-prison-term allegation.6 The trial court additionally imposed a low term sentence of two years on the heroin-related count and the mid term of two years on the methamphetamine-related count, and ordered the sentences on those two counts to run concurrent to the sentence for the carjacking offense.
The trial court also imposed a $300 restitution fine (§ 1202.4), a $120 court operations assessment (§ 1465.8), and a $90 conviction assessment (Gov. Code, § 70373).
The trial court instructed the jury pursuant to CALCRIM No. 315, the standard Judicial Council instruction regarding eyewitness identification. The instruction directs the jury to consider a number of factors in evaluating eyewitness testimony, including the witness's level of certainty.7 Escamilla argues that the inclusion of this factor violates due process due to empirical studies that show witness certainty has weak correlation with accuracy. The Attorney General counters the issue is forfeited by Escamilla's failure to seek modification of the instruction at trial, the claim must be rejected under binding precedent issued by the California Supreme Court, and that any purported error was harmless in any event. We agree with the Attorney General on all three points.
The predecessor instruction to CALCRIM No. 315 is CALJIC No. 2.92, which tells the jury to consider any factor that "bear[s] upon the accuracy of the witness' identification of the defendant, including, . . . [¶] . . . [¶] [t]he extent to which the witness is either certain or uncertain of the identification." At the time of trial in this case, the California Supreme Court had upheld the inclusion of the certainty factor in CALJIC No. 2.92 on at least three occasions. (People v. Sánchez (2016) 63 Cal.4th 411, 461-463 (Sánchez); People v. Johnson (1992) 3 Cal.4th 1183, 1231-1232; see People v. Wright (1988) 45 Cal.3d 1126, 1144 (Wright)].)
In the most recent of these cases, Sánchez, the court acknowledged that "some courts have disapproved instructing on the certainty factor in light of the scientific studies." (Sánchez, supra, 63 Cal.4th at p. 462.) The court nevertheless declined to reexamine its previous holdings, explaining there were a number of identifications in the case, some certain and some uncertain, and therefore it was "not clear that even those [out-of-state] cases would prohibit telling the jury it may consider this factor" as the defendant "would surely want the jury to consider how uncertain some of the identifications were." (Ibid.) The court also determined the instructional claim was forfeited for lack of objection, and the inclusion of the certainty factor resulted in no harm to defendant. (Id. at pp. 461-463.)
In a concurring opinion, Justice Liu agreed the claim...
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