People v. Espana CA6

Filed 11/19/20 P. v. Espana CA6 Opinion following transfer from Supreme Court NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H046062 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. C1361295)

v.

RICARDO ANGEL ESPANA,

Defendant and Appellant.

This case is before us for the second time after the California Supreme Court granted review, deferred briefing, and transferred the matter back to this court with directions to vacate our prior decision and reconsider the cause in light of People v. Stamps (2020) 9 Cal.5th 685 (Stamps). Defendant Ricardo Angel Espana pleaded no contest to attempted murder (Pen. Code, §§ 664, subd. (a), 187),1 shooting at an inhabited dwelling (§ 246), and assault with a firearm (§ 245, subd. (a)(2)). Defendant admitted two firearm enhancements (§ 12022.53, subds. (a), (b)) and a prior serious felony conviction enhancement (§ 667, subd. (a)). On appeal, defendant argued that we should reverse the judgment and remand the matter back to the trial court so that it may exercise its discretion to dismiss his firearm or prior serious felony conviction enhancements in light of Senate Bill Nos. 620 and 1393. In our earlier opinion, we agreed with defendant and reversed and remanded the judgment with directions.

1 Unspecified statutory references are to the Penal Code.

We vacate our previous decision and, having reconsidered it, we again reverse and remand the matter back to the trial court. BACKGROUND 1. The Crimes2 On June 13, 2013, San Jose Police Department officers responded to a drive-by shooting. The victim, who suffered a broken nose, chipped tooth, and a pellet through his right eye, told officers that he was shot by several suspects driving a black vehicle. Prior to the shooting, the victim heard the suspects shout “Norte.” That same evening, officers responded to another shooting. The victim told officers that he was seated in his car when suspects in a dark-colored car pulled up next to him and shot twice into his car. A car matching the description of the suspects’ car was found on a nearby freeway, and defendant was identified as the driver. Defendant and another man, his codefendant, were arrested following a high-speed chase. Both defendant and his codefendant were identified as active members of the Norteño criminal street gang. 2. The Plea Agreement On September 14, 2016, defendant completed an advisement of rights, waiver, and plea form. Defendant agreed to plead no contest to attempted murder (§§ 664, subd. (a), 187), shooting at an inhabited dwelling (§ 246), and assault with a firearm (§ 245, subd. (a)(2)). In connection with the count of attempted murder, defendant admitted a firearm enhancement (§ 12022.53, subd. (b)) and a gang enhancement (§ 186.22, subd. (b)(1)(C)). In connection with the counts of shooting into an inhabited dwelling and assault with a firearm, defendant admitted a firearm enhancement (§ 12022.5, subd. (a)) and a gang enhancement (§ 186.22, subd. (b)(1)(C)). Defendant also admitted