People v. Escarsega CA5

Filed 4/15/25 P. v. Escarsega 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F087679 Plaintiff and Respondent, (Super. Ct. No. VCF371049) v.

ROMAN ESCARSEGA, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Tulare County. Melinda Myrle Reed, Judge. Cynthia L. Barnes, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Kimberley A. Donohue, Assistant Attorney General, Eric L. Christoffersen and Brook A. Bennigson, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Hill, P. J., Levy, J. and Peña, J.

On September 22, 2022, defendant Roman Escarsega was convicted by a jury of two counts of second degree robbery and one count of discharging a firearm with gross negligence. The jury also found multiple firearm enhancements true. The trial court imposed an aggregate sentence of 24 years, and defendant appealed. We vacated defendant’s sentence and remanded for a full resentencing. (People v. Escarsega (Nov. 16, 2023, F085449) [nonpub. opn.].)1 On February 28, 2024, the trial court resentenced defendant. The court again imposed an aggregate sentence of 24 years, which included a 20-year firearm enhancement. On appeal, defendant argues that the trial court abused its discretion by denying his request to strike the 20-year firearm enhancement. The People disagree. We affirm. We also correct an error in the calculation of custody credits.2

1 On August 27, 2024, defendant filed a request for judicial notice of the clerk’s transcript in Escarsega, specifically defendant’s statement in mitigation filed on November 18, 2022. We previously deferred our decision on this request until we considered this appeal on the merits. Additionally, in the respondent’s brief, the People ask us to take judicial notice of the record on appeal and the opinion in Escarsega. Defendant joined in this request. Accordingly, pursuant to Evidence Code sections 452, subdivision (d) and 459, we take judicial notice of the record on appeal and the opinion in Escarsega, including defendant’s statement in mitigation. 2 While defendant was resentenced over a year after he was initially sentenced, the trial court only awarded defendant three additional days of custody credits. Accordingly, we directed the parties “to submit supplemental briefing to address: (1) whether the trial court erred in its custody credit calculation and, if so, (2) whether defendant’s counsel should file a Fares letter (People v. Fares (1993) 16 Cal.App.4th 954) with the trial court or whether this court should correct the error without first affording the trial court an opportunity to do so.” The parties agree, as do we, that the court erred and that we may correct the error. (People v. Buckhalter (2001) 26 Cal.4th 20, 41; People v. Acosta (1996) 48 Cal.App.4th 411, 427; People v. Wrice (1995) 38 Cal.App.4th 767, 773.) Here, the trial court awarded defendant 1,759 days of custody credits on December 1, 2022. Defendant was resentenced on February 28, 2024, and is entitled to an additional 454 days of custody credits. Thus, defendant is entitled to a total of 2,213 days of custody credits. We will direct the trial court to prepare an amended abstract of judgment and forward a copy to the appropriate authorities.