People v. Escareno CA1/5

Filed 6/16/21 P. v. Escareno CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, Plaintiff and Respondent, A159650 v. JOSE GUADALUPE (Mendocino County ESCARENO, Super. Ct. No. SCUK- CRCR-15-80897-2) Defendant and Appellant.

Appellant was convicted of two counts of attempted murder under Penal Code section 664/187, subdivision (a),1 accompanied by firearm use enhancements under section 12022.53, subdivision (b), and consecutive sentences were imposed. In a previous unpublished opinion, we affirmed the judgment of conviction but remanded the case for a hearing to allow the court to consider striking the firearm use enhancements under recent amendments that were enacted under Senate Bill 620. On remand, the trial court struck the firearm enhancement attached to the subordinate count and reduced the aggregate term by three years four months, but it declined to strike the enhancement on the

Further references are to the Penal Code unless otherwise 1

indicated.

1

principal count. We reject appellant’s claim that this was an abuse of discretion. I. BACKGROUND On February 21, 2015, David S. saw appellant's nephew, Francisco Escareno, driving very fast through the neighborhood, and saw a dog fall off the back of Francisco’s2 truck. About 15 minutes later, Francisco returned with appellant. David told Francisco to drive more slowly because David’s children played outside, which made Francisco angry. The two men started to fight. Appellant tried to hit David, and attempted to punch David’s brother, Eduardo S., who was also present. Appellant then ran to the truck, retrieved a pistol, and hit David in the back with it, causing it to fire. David felt a hard blow to his back and heard a shot. David fell off Francisco, who stood up. Appellant told David and Eduardo, “I'm going to kill you,” and tried to fire at them several times, but the gun was jammed. Appellant and Francisco then got in the truck and left. Appellant told a sheriff’s deputy he had hit David on the back with the gun, which caused the gun to “go off.” Appellant then saw the gun was jammed and he cleared it. Law enforcement found the gun in Francisco’s truck. It did not appear to be jammed. Based on this evidence, a jury convicted appellant of two counts of attempted murder against David and Eduardo and found that appellant had personally used a firearm in connection with those offenses under section 12022.53, subdivision (b). On