Filed 12/17/19 P. v. Esquibel CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

ENRIQUE ESQUIBEL,

Defendant and Appellant.

F076330

(Super. Ct. Nos. BF166694A, BF163409A, BV007237A)

OPINION

APPEAL from a judgment of the Superior Court of Kern County. Kenneth C. Twisselman II, Judge.

Diane E. Berley, 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, Louis M. Vasquez and Sarah J. Jacobs, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

Enrique Esquibel was found guilty by jury in count 1 of kidnapping during the commission of a carjacking (Pen. Code, § 209.5), in count 2 of carjacking (§ 215, subd. (a)), in count 3 of kidnapping (§ 207, subd. (a)), in count 4 of assault with a firearm (§ 245, subd. (b)), in count 5 of making criminal threats (§ 422), and in count 6 of being a felon in possession of a firearm (§ 29800, subd. (a)(1)). The jury found true the allegations that Esquibel personally used a firearm during the commission of the offenses (§§ 12022.53, subd. (b), 12022.5, subd. (a)), and it found true that counts 2, 4, 5, and 6 were committed for the benefit of or at the direction of a criminal street gang (§ 186.22, subd. (b)(1)). In a bifurcated proceeding, the trial court found the prison term enhancements true (§ 667.5, subd. (b)). The trial court dismissed the count 2 carjacking conviction, as a lesser included offense of the count 1 conviction, kidnapping in the commission of a carjacking.

The trial court sentenced Esquibel to an indeterminate term of life, plus a determinate term of 26 years, as follows: on count 1, to life with the possibility of parole, plus 10 years for the section 12022.53, subdivision (b) firearm enhancement, plus two years for the two section 667.5, subdivision (b) prison priors; and on count 5, the upper term of three years, plus five years for the gang enhancement, plus four years for the section 12022.5, subdivision (a), firearm enhancement, plus two years for the two section 667.5, subdivision (b) prison priors, to run consecutive to the sentence imposed in count 1. The sentences in counts 3, 4 and 6 were imposed and stayed pursuant to section 654.

On appeal, Esquibel contends the trial court abused its discretion in refusing to order a section 1368 competency hearing. He also contends remand is necessary to allow the trial court to consider resentencing of his firearm enhancements pursuant to Senate Bill No. 620 (Senate Bill 620). We remand the matter for the trial court to exercise its discretion and determine whether to strike the firearm enhancements, but otherwise affirm.

STATEMENT OF THE FACTS

In early December 2016, J.R. met Esquibel on a social media website and a romantic relationship ensued. Esquibel told J.R. he was a former gang member and he had numerous gang tattoos. On December 23, J.R.’s home was burglarized and “everything” was missing, including a bonus check she received, her cell phone and her vehicle. J.R. suspected Esquibel and his brother of the burglary and contacted law enforcement.

Soon after the burglary, Esquibel’s brother contacted J.R. and offered to return some of the stolen items, including the bonus check, if she paid him $60, and she agreed. On December 26, J.R.’s cousin contacted Esquibel and made arrangements for her to get her vehicle back. Esquibel subsequently met J.R. at a store and returned her vehicle. They agreed to meet the following morning for Esquibel to return some additional possessions.

On December 27, 2016, Esquibel accused J.R. of having a romantic relationship with his brother and threatened to shoot and beat her. His threatening language included specific reference to his gang.

Later that day, J.R. drove to the motel where Esquibel was staying in order for him to return her stolen belongings. At the motel, Esquibel told J.R. that he needed her car and tried to force her out of the driver’s seat when she refused. Esquibel took the keys out of the ignition and opened the driver’s side door. He then pulled a gun out of his ankle area, pointed it at J.R. and said, “How much is your life worth to you?” At that moment, a police car arrived at the scene on an unrelated call. Esquibel threw the gun into the backseat of the car, ran to the passenger side, got in, and told J.R. to drive.

J.R. drove past the police car very slowly, trying to make eye contact, and repeatedly stepping on her brakes. Esquibel retrieved the gun from the backseat and told J.R. to drive. When J.R. reached the parking lot exit and realized the police car was not pursuing her, she put the car into reverse and honked the horn. Esquibel opened the passenger door, told J.R. he was going to get her, and ran away. J.R. told the officer that Esquibel had a gun; they pursued and caught him.

Following Esquibel’s arrest, J.R. received a death threat from Esquibel’s brother. She received messages from friends of Esquibel’s, offering her money not to testify and to drop charges. She also received messages from Esquibel’s family members who stated that they knew where she lived. J.R. feared for her life and moved.

DISCUSSION

I. DID THE TRIAL COURT DENY ESQUIBEL DUE PROCESS WHEN IT DECLINED TO SUSPEND PROCEEDINGS AND ORDER A COMPETENCY HEARING UNDER SECTION 1368?
II.
Esquibel claims that, during his Marsden hearing, he stated numerous times that he believed he was incompetent to stand trial. The trial court declined to conduct a section 1368 hearing, and Esquibel contends error. We reject Esquibel’s claim.

Background

During the Marsden hearing prior to trial, Esquibel made comments regarding his “competency” relating to his relationship with defense counsel:

“Well, Your Honor, I understand I’m looking at life and stuff. It’s just like, there’s a lack of trust between me and her. I don’t even know what’s going on with my case. Like, there’s lack of becoming embroiled in stuff, between me and her. Like, I’ve lost some trust. I’m looking at like my life is on the line. [¶] And I’ve been doing my homework, and everything that I’ve been coming up with, I’ve been doing. I don’t even have nothing on my case. I don’t get seen like a daily basis on my case. I’ve got to come to court and everything, and it’s just lack of trust. Incompetent—I’m incompetent of [defense counsel], and right now, at this moment, like, I’m like, there’s no getting along.”

In further explaining his frustration with defense counsel, Esquibel stated,

“I’m sitting here doing all this myself, and it’s supposed to be her job because I understand that the US consulate [sic] amendment 5, 6, and 14, it’s proving me if there’s no trust between me and my attorney, it is incompetent, and I feel like this is embroiled and everything. All the paperwork I’ve been doing is telling me my rights should be granted because everything I’ve been doing. [¶] Your Honor, that’s basically all I really got to say because there’s no trust, and I don’t really know what’s going on, and my life is on the line, and I’m sitting here doing my own work.” (Italics added.)

Defense counsel acknowledged Esquibel’s frustration with the numerous trial delays, and stated the main issue was her lack of availability the past two weeks due to a separate ongoing trial. When the trial court questioned Esquibel about whether defense counsel discussed his case, the investigative reports, or police reports with him, Esquibel responded,

“No. There’s only, like, oh, we’re going to trail it to this day. I can’t get ahold of nobody, or I got ahold of this person, but we’re going to go ahead and trail it. [¶] I don’t really know—like I say, Your Honor, I don’t really know, because I’m incompetent because a lot of things going on in my life right now. To me, it’s like why am I going to trust somebody that’s not giving me the right—.”

The trial court acknowledged Esquibel’s frustration with the judicial process, but denied his Marsden motion. It then also found appellant to be competent stating,

“To the extent that you voice distrust in [defense counsel], or a lack of trust, based on the frustration and the research that you have had to conduct yourself, that is not a sufficient grounds [sic] to release [defense counsel] as your cou[r]t-appointed attorney. That is insufficient, in and of itself. That appears to be the gravamen of your contentions today, and why you wish that she be removed as your court-appointed attorney. [¶] One other thing that is of significance, at least for this Court to hear and thereafter consider, is the representation that you’ve made about being incompetent. That is, in a legal sense, is a very significant word when utilized and represented. [¶] Based on this Court’s observations and interaction with you during this hearing, I do not find that you are incompetent, but rather that you are competent in being able to understand the proceedings before you, in addition to the system of justice and the proceedings required for purposes of a jury trial. [¶] And at this point, if there was a motion, the Court would deny it, just based on its direct observations. Certainly, that denial would be without prejudice. So in the event, observations are made with someone who has more contact with you or to represent to the Court their concern about competence, certainly another tribunal or another venue would consider that representation and most likely act upon it. But your assertion alone about incompetence does not rise sufficiently to the level of raising a concern, in this Court’s view, to take additional actions or precautions. [¶] If [defense counsel], in the future, were to voice that concern, then I’m confident that the assertion would be deal[t] with differently.”

Applicable Law and Analysis

A criminal trial of an incompetent person violates his or her federal due process rights. (Cooper v. Oklahoma (1996) 517 U.S. 348, 354.) The state Constitution and section 1367 similarly preclude a mentally incompetent defendant’s criminal trial or sentencing. (§ 1367, subd. (a) [“A person cannot be tried or adjudged to punishment … while … mentally incompetent”]; People v. Lightsey (2012) 54 Cal.4th 668, 691 (Lightsey).) A defendant is incompetent to stand trial if the defendant lacks “‘sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding … [or] a rational as well as factual understanding of the proceedings against him.’” (Dusky v. United States (1960) 362 U.S. 402; Lightsey, supra, at p. 691 [“[s]tate constitutional authority is to the same effect” as Dusky].)

Under section 1368, subdivision (a), a judge must state on the record any doubt that arises in his or her mind as to the mental competence of the defendant, and either seek defense counsel’s opinion as to the defendant’s mental competency, or appoint counsel if the defendant is unrepresented. The decision whether to order a competency hearing rests within the trial court’s discretion, and may be disturbed upon appeal “only where a doubt as to [mental competence] may be said to appear as a matter of law or where there is an abuse of discretion.” (See People v. Pennington (1967) 66 Cal.2d 508, 518.) When the court is presented with “substantial evidence of present mental incompetence,” however, the defendant is “entitled to a section 1368 hearing as a matter of right.” (Ibid.) On review, our inquiry is focused not on the subjective opinion of the trial judge, but rather on whether there was substantial evidence raising a reasonable doubt concerning the defendant’s competence to stand trial. (People v. Welch (1999) 20 Cal.4th 701, 737–738.) Evidence may be substantial even where it is contested or presented by the defense. (Lightsey, supra, 54 Cal.4th at p. 691.) A trial court reversibly errs if it fails to hold a competency hearing when one is required under the substantial evidence test. (Ibid.)

To raise a doubt under the substantial evidence test, courts require more than “‘mere bizarre actions’ or statements, or even expert testimony that a defendant is psychopathic, homicidal, or a danger to him- or herself and others.” (People v. Mickel (2016) 2 Cal.5th 181, 202 (Mickel).) The focus of the competence inquiry is on a “defendant’s understanding of the criminal proceedings against him or her and the ability to consult with counsel or otherwise assist in his or her defense.” (Ibid.)

Here there is nothing in the record that provides substantial evidence that, at the time of the Marsden hearing, Esquibel was incapable of understanding the proceedings or assisting in his own defense. Esquibel claims the trial court was obligated to hold a full competency hearing prior to trial, based on his usage of the word “incompetent” during the Marsden hearing. However, when read in context, as detailed above, Esquibel was expressing his belief that defense counsel was inadequate in failing to explain the judicial process to him. The trial court, in an abundance of caution, addressed the issue of Esquibel’s incompetency because of his use of that word, but stated specifically that Esquibel was, based on the trial court’s direct observations, “competent in being able to understand the proceedings before [him], in addition to the system of justice and the proceedings required for purposes of a jury trial.”

Esquibel also notes his probation report states he self-reported that he suffered from bipolar disorder, schizophrenia, and depression. However, this probation report was not before the trial court at the time of his Marsden hearing, and Esquibel made no such assertion to the trial court at the time. “For substantial evidence to raise a doubt about a defendant’s competence, we must be able to reasonably conclude that the evidence was in fact part of the record presented or otherwise made available to the trial court.… We do not require a trial court to evaluate a defendant’s competence based on evidence not before it at the time of its decision.” (Mickel, supra, 2 Cal.5th at p. 197.)

In any event, other evidence, both before and after the Marsden hearing point to Esquibel’s competence. As noted by respondent, Esquibel entered a no contest plea to other charges a year prior to the current trial. During that hearing, the trial court determined that Esquibel appropriately acknowledged the nature of the charges against him and understood his possible punishment. At that time, no competency issues were raised.

And, during the current trial, the trial court interacted with Esquibel numerous times in explaining the proceedings and his rights. At one point the trial court accepted a stipulation regarding Esquibel’s prior felony conviction only after “confirm[ing] with [Esquibel] [that] he understands and agrees .…” The trial court then asked Esquibel if he understood that the reason for bifurcating the charges on his priors was to prevent the jury from hearing what type of crimes he had been convicted of. Esquibel stated that he did. He also confirmed he had discussed the issue with counsel and all of his questions had been answered before agreeing to the stipulation. Such an interaction clearly shows Esquibel had a “‘sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding’” and “ha[d] ‘a rational as well as factual understanding of the proceedings against him.’” (Godinez v. Moran (1993) 509 U.S. 389, 396–402.)

And finally, defense counsel never expressed any doubt or concern regarding Esquibel’s competency during the course of the trial and never requested a formal competency hearing.

We find no abuse of discretion on the part of the trial court and reject Esquibel’s claim to the contrary.

III. DOES SENATE BILL 620 REQUIRE REMAND FOR THE TRIAL COURT TO RECONSIDER SENTENCING ON THE SECTION 12022.5 AND 12022.53 ENHANCEMENTS?
IV.
Esquibel also contends his case must be remanded for the trial court to exercise its discretion to strike the firearm enhancements pursuant to section 12022.5, subdivision (c) and section 12022.53, subdivision (h). We agree.

At the time of Esquibel’s sentencing in this matter, the trial court was required to impose additional prison sentences for the firearm enhancements found true under sections 12022.5 and 12022.53. (Former §§ 12022.5, subd. (a), 12022.53, subd. (b).) On October 11, 2017, however, the Governor approved Senate Bill 620, which amended, in part, sections 12022.5 and 12022.53. Under the amendments, a trial court now has discretion to strike or dismiss these firearm enhancements. (§§ 12022.5, subd. (c), 12022.53, subd. (h).)

The parties agree, as do we, that these amendments apply retroactively to Esquibel because his case is not yet final. (People v. Woods (2018) 19 Cal.App.5th 1080, 1090.) The parties, however, disagree whether remand is appropriate.

Respondent asserts that a remand would serve no purpose, noting that the trial court imposed the maximum sentence on each underlying offense; that it ran the terms for counts 1 and 5 consecutively; and that, at one point during sentencing, the trial court stated Esquibel was a “clear danger to the community.”

Remand for resentencing is necessary when “the record contains no clear indication of an intent by the trial court not to strike one or more of the firearm enhancements” under the amendments effected by Senate Bill 620. (People v. McDaniels (2018) 22 Cal.App.5th 420, 427–428.) We find no such clear indication here. While Esquibel’s sentence included two mandatory terms of 10 years each as to counts 1 and 3, pursuant to section 12022.53, subdivision (b), it also included two mandatory four-year terms, as to counts 4 and 5, pursuant to section 12022.5, subdivision (a). The four-year terms were the midterm amounts. Counts 3 and 4 were stayed.

Given this record, as well as the new sentencing practices created by the amendment to the firearm enhancement statute, we cannot say that the same sentence would have been imposed had the law been as it is now. Accordingly, remand is appropriate.

DISPOSITION

The matter is remanded to the trial court for the limited purpose of resentencing. Upon remand, the court shall hold a resentencing hearing at which it may exercise its discretion to strike the firearm enhancements. (§§ 12022.5, subd. (c), 12022.53, subd. (h).) If the trial court strikes any of those enhancements, it shall resentence defendant. If it declines to strike any of the enhancements, it shall reinstate the judgment. Esquibel may also raise the issue of the applicability of Senate Bill No. 136 (2019–2020 Reg. Sess.) at the time of resentencing. In all other respects, the judgment is affirmed.

FRANSON, Acting P.J.

WE CONCUR:

PEÑA, J.

SNAUFFER, J.