People v. J.R., 031519 CAAPP5, F073686A

Docket Nº:F073686A
Opinion Judge:HILL, P.J.
Party Name:THE PEOPLE, Plaintiff and Respondent, v. J.R., Defendant and Appellant.
Attorney:Law Offices of John F. Schuck and John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra and Kamala D. Harris, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein,...
Judge Panel:WE CONCUR: PEÑA, J.SMITH, J.
Case Date:March 15, 2019
Court:California Court of Appeals
 
FREE EXCERPT

THE PEOPLE, Plaintiff and Respondent,

v.

J.R., Defendant and Appellant.

F073686A

California Court of Appeals, Fifth District

March 15, 2019

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Merced County, No. CRM022497B Ronald W. Hansen, Judge.

Law Offices of John F. Schuck and John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra and Kamala D. Harris, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein, Peter H. Smith and Stephanie A. Mitchell, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

HILL, P.J.

Appellant, J.R., was born in 1996. In 2011, at the age of 14 years, eight months, J.R. participated in the shootings of multiple individuals during two separate incidents. He was prosecuted as an adult and convicted on three counts of attempted premeditated murder, two counts of active participation in a criminal street gang, and one count of conspiracy to commit murder. The trial court imposed an aggregate prison sentence of 120 years to life.

J.R. challenges the sufficiency of the evidence with regard to his conspiracy conviction. We conclude the verdict was supported by substantial evidence. In his opening brief, he makes additional claims concerning presentence conduct credits and the need to document information relevant to future youth offender parole hearings under Penal Code section 3051 (all further statutory references are to the Penal Code). However, the latter claims are moot in light of certain changes in the law that occurred during the pendency of this appeal.

In supplemental briefing, J.R. argues for retroactive application of the Public Safety and Rehabilitation Act of 2016 (Proposition 57) and of Senate Bill No. 620 (2017-2018 Reg. Sess.) (SB 620) (Stats. 2017, ch. 682, § 2, eff. Jan. 1, 2018). The People concede the SB 620 claim but initially disputed J.R.'s contentions with regard to Proposition 57. The decision in People v. Superior Court (Lara) (2018) 4 Cal.5th 299 (Lara) resolves the Proposition 57 issue in J.R.'s favor.

On September 30, 2018, Governor Brown approved Senate Bill No. 1391 (2017-2018 Reg. Sess.) (SB 1391) (Stats. 2018, ch. 1012, § 1), which amended Proposition 57 by prohibiting the criminal prosecution of juvenile offenders for felonies committed prior to the age of 16 years. The legislation went into effect on January 1, 2019, and the parties agree it applies retroactively to cases not yet final on appeal. In light of Lara, we accept this argument and remand the case to the juvenile court for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

J.R. was charged by information with attempted premeditated murder (§§ 187, 189, 664 [counts 1, 2 & 4]); active participation in a criminal street gang (§ 186.22, subd. (a) [counts 3 & 5]); and conspiracy to commit murder (§§ 182, subd. (a)(1), 187 [count 6]). There were enhancement allegations of gang-related conduct (§ 186.22, subd. (b)(1)(C) [counts 1, 2 & 4]) and personal use of a firearm with proximate causation of great bodily injury (§ 12022.53, subd. (d) [counts 1, 2, 4 & 6]). The case was tried before a jury. Viewed in the light most favorable to the judgment, the trial evidence established the following facts.

There is a criminal street gang known as the Nortenos that is active in Merced County and other regions of California. The gang identifies with the color red, and its primary activities include narcotics trafficking and gun violence. The Nortenos are enemies of a gang called the Surenos, which identifies with the color blue. Members of these rival groups frequently commit acts of violence against each other.

In early 2011, the California Department of Justice (DOJ) investigated the activities of Norteno gang members in Los Banos and other parts of Merced County. “Operation Red Zone, ” as it was dubbed by participating agents, involved undercover surveillance and the wiretapping of phones used by certain individuals, including Gonzalo Esquivel, Kenneth Hernandez, and appellant J.R. Esquivel, then age 30, was a “high-ranking member” of the Nortenos and controlled the gang's distribution of narcotics in and through the cities of Livingston, Los Banos, and Merced. Hernandez was one of Esquivel's top lieutenants. As explained by one of the DOJ agents, Hernandez, then age 28, “was Gonzalo Esquivel's number two in Los Banos. … [H]e was pretty much Gonzalo's main narcotics distributor in Los Banos, and then he also had a bunch of younger [Nortenos] that reported to him and would go out and do shootings.” J.R. was “a lower-level gang member” who sold cocaine and other drugs in and around Los Banos.

On April 9, 2011, A.E. (victim #1) and P.P. (victim #2) were shot while walking along D Street in Los Banos. Victim #1 was a Norteno associate with extensive family connections to the gang, but she happened to be wearing a blue windbreaker that evening. Apparently mistaken for a Sureno, she was struck by two bullets in the hip and stomach. Victim #2 was a former Sureno, i.e., a “dropout, ” who...

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