People v. ESQUIBEL

166 Cal.App.4th 539

82 Cal.Rptr.3d 803

The PEOPLE, Plaintiff and Respondent, v. Peter ESQUIBEL, Defendant and Appellant.

No. B165767.

Court of Appeal, Second District Division 8.

Aug. 29, 2008.

As Modified Sept. 29, 2008.

Review Denied Nov. 12, 2008.

Certiorari Denied April 20, 2009.

COPYRIGHT MATERIAL OMITTED.

COPYRIGHT MATERIAL OMITTED.

Martin Kassman, San Francisco, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Robert F. Katz and Roy C. Preminger, Deputy Attorneys General, for Plaintiff and Respondent.

COOPER, P.J.

INTRODUCTION

Appellant challenges his conviction for four counts of attempted murder and one count of assault with a firearm. His initial contention is that the trial court improperly excluded two of his friends during the examination of a seven year-old witness. We hold the temporary exclusion of these two spectators did not result in the violation of appellant's constitutional right to a public trial. We conclude that Penal Code section 686.2 has no application to this case. ¹

The United States Supreme Court granted certiorari in this case and vacated the judgment, for further consideration in light of Cunningham v. California (2007) 549 U.S. 270, 127 S.Ct. 856, 166 L.Ed.2d 856( Cunningham ). We reconsider the sentence and find the imposition of the high term was appropriate. Appellant also challenges certain sentencing enhancements, which we modify. In all other respects, the judgment is affirmed.

PROCEDURAL BACKGROUND

In an information filed by the District Attorney of Los Angeles County, appellant was charged with five counts ² of attempted, willful, deliberate, and premeditated murder, (§§ 664, 187, subd. (a).) Count 1 further alleged that in the commission of the crime, appellant personally inflicted great bodily injury upon the victim, causing the victim to suffer paralysis and become comatose due to brain injury. (§ 12022.7, subd. (b).) The informationadditionally alleged as to all counts that a principal personally and intentionally discharged a firearm, thereby causing great bodily injury to the victims (§ 12022.53, subds. (d), (e)(1)); that a principal personally and intentionally discharged a firearm (§ 12022.53, subds. (c), (e)(1)); and that a principal personally used a firearm (§ 12022.53, subds. (b), (e)). The information also alleged that the offenses charged therein were committed for the benefit of, at the direction of, or in association with a criminal street gang with the specific intent to promote, further and assist in criminal conduct by gang members. (§ 186.22, subd. (b)(1).)

Appellant was tried by a jury and found guilty of willful, deliberate and premeditated attempted murder on four counts (counts, 1, 2, 3, and 5) and guilty of the lesser included offense of assault with a firearm on one count (count 4; § 245, subd. (a)(2).) The jury found to be true the allegations in count 1 that appellant personally inflicted great bodily injury upon the victim, thereby causing the victim to suffer paralysis, and that appellant personally and intentionally discharged a firearm, thereby proximately causing great bodily injury to the victim. The jury further found to be true, as to all five counts, the allegations that in the commission of the crimes, appellant acted for the benefit of, at the direction of, or in association with a criminal street gang with the intent to promote, further, or assist in criminal conduct by gang members. With respect to counts 2 through 5, the jury found that in the commission of the offenses, appellant personally and intentionally discharged a firearm and that he personally used a firearm.

Probation was denied and appellant was sentenced as follows: count 1, life imprisonment, with a minimum term of 15 years on account of the gang allegation, plus 25 years to life for the use of firearm with great bodily injuryenhancement, plus five years for the great bodily injury enhancement, for a total of 40 years to life plus five years; count 2, life imprisonment for attempted murder, with a minimum term of 15 years to life on account of the gang allegation, plus 20 for the use of firearm enhancement. The term for count 2 was ordered to run consecutive to count 1. On counts 3 and 5, the trial court imposed concurrent sentences identical to count 2. On count 4, the trial court imposed the upper term of 4 years for assault with a firearm.

Appellant filed a filed a timely notice of appeal on March 11, 2003.

In June of 2004, the United States Supreme Court decided Blakely v. Washington (2004) 542 U.S. 296, 303-304, 124 S.Ct. 2531, 159 L.Ed.2d 403 ( Blakely ) which held that under the Sixth Amendment right to a jury trial, the maximum sentence a judge may impose is that permitted by the facts established by the jury verdict or admitted by the defendant. The parties filed supplemental briefs in September and October 2004. Appellant further contended that the imposition of the upper term on count 4 violated his right to a jury trial as set forth in Blakely.

In our first opinion issued on December 30, 2004, ³ we affirmed the judgment, butordered the case remanded to the trial court for appropriate findings per Blakely. Both sides filed petitions for review in the California Supreme Court. On March 16, 2005, the California Supreme Court granted respondent's petition and denied appellant's petition for review. On September 9, 2005, the California Supreme Court remanded the case to this court for further consideration in light of People v. Black (2005) 35 Cal.4th 1238, 1257-1261, 29 Cal.Rptr.3d 740, 113 P.3d 534 ( Black I). In Black I, the California Supreme Court held that California's Determinate Sentencing Law [DSL] did not violate Blakely, and a trial court retains the discretion to impose the upper term sentence based on aggravating factors found by the court.

On September 28, 2006, we again affirmed the judgment of conviction, and issued our second opinion in which we remanded the matter again for resentencing. ( People v. Esquibel (2006) 143 Cal.App.4th 645, 49 Cal.Rptr.3d 393 ( Esquibel II).) We rejected appellant's sentencing claim, citing Booker and Black I. We affirmed the judgment of the trial court with the exception of an improperly imposed enhancement. Appellant subsequently filed a petition for review in the California Supreme Court. On December 20, 2006, the California Supreme Court denied the petition.

On January 22, 2007, the United States Supreme Court decided Cunningham, supra, 549 U.S. 270, 127 S.Ct. 856, 166 L.Ed.2d 856. Cunningham held California's DSL wasunconstitutional, disagreeing with the California Supreme Court's decision in Black I. ( People v. Black (2005) 35 Cal.4th 1238, 29 Cal.Rptr.3d 740, 113 P.3d 534, judgment vacated and cause remanded sub nom. Black v. California (2007) 549 U.S. 1190, 127 S.Ct. 1210, 167 L.Ed.2d 36.) The United States Supreme Court held that California's DSL violates the Sixth Amendment to the extent it allows a trial court to impose an upper term based on facts not found by the jury.

On March 20, 2007, Defendant filed a petition for a writ of certiorari in the United States Supreme Court. Thereafter, the United States Supreme Court granted defendant's certiorari petition, vacated our judgment in Esquibel II, and on May 29, 2007 remanded the matter to us for further consideration in light of Cunningham.

STATEMENT OF FACTUAL HISTORY

Before analyzing the Cunningham issue, we adopt and restate the portions of our original decision that stated the underlying facts, and rejected Esquibel's non-sentencing contention; that the trial judge improperly excluded two spectators from the trial.

The charges against appellant arose from an egregious set of facts, the entire restatement of which is not relevant to the outcome of the appeal. What is relevant is that the charges arose from an incident where a lone gunman came into a public park and shot at a group of adults and children playing in the park. A bullet grazed one of the children. Several adults chased after the shooter, who turned and shot again. One parent [victim in count 1] was shot and paralyzed. Evidence from the incident and expert testimony suggested that the shooting was done for the benefit of a criminal street gang.

The initial contention in this appeal concerns the trial court's decision to excludetwo apparent friends of appellant from the courtroom during the examination of a seven-year-old boy. The discussion regarding the presence of these spectators began prior to the opening statements in this case. On January 22, 2003, outside of the presence of the jury, the prosecutor informed the trial court that because of the “gang implications” of this case, the mother of a seven-year-old witness was “concerned about retaliation in the neighborhood.” The mother asked for several accommodations to limit the possibility that her son would be identified. Specifically, she asked if he could testify under the name of John Doe, instead of his own name. The mother also was concerned about having her son testify in the courtroom while certain persons were in the audience inside the courtroom. The prosecutor explained to the trial judge: “And she's also concerned about having-when the child testifies having audience members in the court, as well. I assured-I don't see any people who appear to be friends of the defendant as far as young males herethis morning. And I know his mother who, obviously, has a right to be here. [¶] There is one other person who is present, I think, associated with perhaps a mother or an aunt of some of his fellow gang members. And I'm concerned about her presence during the testimony of the child. And I ask that she be excluded as well as any young male Hispanics that might show up this morning, just for the children's testimony.”

The defense counsel...