P. v. Esquivel

Filed 2/13/18 P. v. Esquivel CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE,
Plaintiff and Respondent,
v.
DANIEL GARY ESQUIVEL,
Defendant and Appellant.
B269545
(Los Angeles County
Super. Ct. No. SA084395)
APPEAL from a judgment of the Superior Court of Los
Angeles County, Kathryn A. Solorzano, Judge. Remanded for
resentencing.
Patricia S. Lai, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Scott A. Taryle and John Yang, Deputy
Attorneys General, for Plaintiff and Respondent.
________________________

-- 1 of 21 --

2
A group of people were gathered outside a house to
remember a slain friend when Daniel Gary Esquivel stepped out
of his car and fired multiple shots intending to kill Jose Macias.
The shots struck both Macias and Carlos Juarez. Both were
injured; neither was killed. The trial court instructed the jury on
the kill zone theory, and the jury convicted Esquivel of two counts
of attempted murder. Esquivel challenges his conviction for the
attempted murder of Juarez. He does not challenge his
conviction for the attempted murder of Macias.
Esquivel contends (1) the evidence did not support
instructing the jury on the kill zone theory; (2) the kill zone
instruction as given was erroneous; and (3) the trial court erred
by failing to conduct an inquiry into possible juror misconduct.
None of the arguments has merit. Accordingly, we affirm the
judgment of conviction. Esquivel also requests that his case be
remanded for resentencing in light of the recent legislation giving
the trial court discretion to strike the firearm enhancements. We
agree and therefore vacate the sentence and remand the matter
for resentencing.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Information
The district attorney filed an information charging
Esquivel with the attempted murders of Macias and Juarez,
alleging that the crimes attempted were willful, deliberate, and
premeditated (Pen. Code, § 187, subd. (a), 664, subd. (a)).1 As to
1 All undesignated statutory references are to the Penal
Code.

-- 2 of 21 --

3
both counts, the information alleged that Esquivel personally and
intentionally discharged a firearm causing great bodily injury
(§ 12022.53, subd. (d)), personally and intentionally discharged a
firearm (id., subd. (c)), and personally used a firearm (id.,
subd. (b)). The information also alleged that Esquivel committed
the crimes for the benefit of a criminal street gang (§ 186.22,
subd. (b)(1)(C)).2
B. Esquivel Shoots To Kill Macias and Wounds Juarez
On the afternoon of June 8, 2013, several people gathered
outside a house near Culver Boulevard and Slauson Avenue to
remember Terrance Wilson, who had been killed the previous
night. Macias was there with his girlfriend, Arlene Velasquez,
drinking alcohol. People were standing in the driveway area
near a fence. They were standing on the driveway, around the
apron of the driveway, and on portions of the front yard.
At approximately 4:30 p.m., the police responded to a call
that shots had been fired at the scene. Macias was shot in his
hand, hip, left leg, and left ankle. Juarez was shot in the shin.
Officer Helene Noriega-Godoy of the Los Angeles Police
Department (LAPD) and her partner were the first police officers
to arrive. Velasquez told Officer Noriega-Godoy that her
boyfriend had been shot and that the shooter was in a silver or
black four-door Infiniti. Velasquez identified the shooter as
Daniel Esquivel, also known as Dan-Dan of the Culver City Boys,
a local gang. Velasquez stated that Esquivel drove up, stepped
out of the car, pointed a handgun at Macias, fired multiple
2 The People dismissed the gang allegation under
section 186.22, subdivision (b)(1)(C), prior to trial.

-- 3 of 21 --

4
rounds at Macias, and then stepped back into the car and drove
away.
Officer Thomas Harrison of the LAPD also arrived at the
scene shortly after the call was broadcasted. Officer Harrison
heard Velasquez calling out for an ambulance and shouting, “I
don’t give a fuck if I’m a snitch. Dan-Dan fucking shot my
boyfriend.” Later at the hospital, Velasquez told Officer Harrison
that Esquivel pulled up in his car, stepped out of the car, and
before shooting at Macias said, “Bitch, I told you I was going to
kill you,” and then fired several shots at Macias, got back into his
car, and left. Velasquez stated that she heard six or seven shots.3
Velasquez also identified Esquivel as the shooter in a recorded
interview with another officer at the hospital and stated that
Esquivel and Macias had been enemies since high school.
A police detective found 12 nine-millimeter shell casings at
the scene and three bullet fragments, indicating that at least 12
bullets were fired. A surveillance video from a store nearby
showed a light-colored four-door car stop next to a parked car for
20 to 25 seconds and then drive away as people ran from the
area. The police determined that a 2006 Infinity was registered
to Esquivel and his girlfriend.
The police also interviewed Macias at the hospital.
Initially he refused to identify the shooter. Eventually Macias
identified “Dan-Dan” as the shooter and picked Esquivel’s
3 At trial, Velasquez denied making those statements to the
police and testified that she never saw the shooter and never
identified Esquivel as the shooter. Velasquez testified that she
had known Esquivel since their childhood, she knew him as
“Dan-Dan,” and their parents knew each other. She
acknowledged that she was reluctant to testify.

-- 4 of 21 --

5
photograph from a six-pack lineup. Macias testified at trial that
he heard tires screeching, saw Velasquez jump in front of him,
and then heard shots fired and pushed her out of the way.
Macias then began running. Juarez testified that he was leaning
against a gate and smoking a cigarette when the shooting
occurred.
Officer Pompello Calderon of the LAPD testified as a gang
expert regarding the criminal conduct of gang members, their
practice of instilling fear in a community, and their efforts to
earn respect. Officer Calderon opined that both Esquivel and
Macias were members of the Culver City Boys at the time of the
shooting.
C. Esquivel’s Alibi
Esquivel’s cousin Pauline Rodriguez testified that on
June 8, 2013, she attended a children’s baseball event known as
Trophy Day at the park, and Esquivel was present at the event
from noon until at least 5:30 p.m., when she saw him help taking
down the tents. Rodriguez testified that she would have noticed
if Esquivel had left the park. Esquivel’s cousin Linda Morena
also testified that she attended Trophy Day from noon until
5:30 p.m., and Esquivel was present that entire time.
Moreno’s friend Estrella Sanchez testified that she
attended Trophy Day from 4:00 p.m. until about 7:00 p.m., and
saw Esquivel there from 4:00 p.m. until 6:30 p.m. Mark
Espinoza, a baseball coach, testified that when he arrived at the
park at 2:00 p.m. Esquivel was already there, and Esquivel left
sometime before 8:00 p.m. Espinoza stated that he would not
have noticed if Esquivel had left the park during that time
because there were many people at the event.

-- 5 of 21 --

6
D. The Attempted Murder Instruction
The trial court instructed the jury on attempted murder
pursuant to CALCRIM No. 600:
“To prove that the defendant is guilty of attempted murder,
the People must prove that:
“1. The defendant took at least one direct but ineffective
step toward killing another person;
“AND
“2. The defendant intended to kill that person. [¶] . . .
[¶] A person may intend to kill a specific victim or victims and at
the same time intend to kill everyone in a particular zone of harm
or ‘kill zone.’ In order to convict the defendant of the attempted
murder of Carlos Juarez, the People must prove that the
defendant not only intended to kill Jose Macias but also either
intended to kill Carlos Juarez or intended to kill everyone within
the kill zone. If you have a reasonable doubt whether the
defendant intended to kill Carlos Juarez or intended to kill Jose
Macias by killing everyone in the kill zone, then you must find
the defendant not guilty of the attempted murder of Carlos
Juarez.”
E. The Verdict and Sentencing
The jury found Esquivel guilty of the attempted murders of
both Macias (count 1) and Juarez (count 2) and found that the
attempted murder of Macias, but not that of Juarez, was willful,
deliberate, and premeditated (§ 664, subd. (a)). The jury found
that Esquivel personally and intentionally discharged a firearm,
causing great bodily injury, in committing both attempted
murders (§ 12022.53, subd. (d)). The trial court sentenced
Esquivel to life in prison for the attempted murder of Macias,

-- 6 of 21 --

7
plus a consecutive term of 25 years to life for the true firearm
allegation. The court also sentenced Esquivel to a term of five
years for the attempted murder of Juarez to run concurrently
with his sentence on count 1, plus a term of 25 years to life for
the true firearm allegation, consecutive to the five-year term.
DISCUSSION
A. The Evidence Supported Giving the Kill Zone Instruction
“When a legally correct instruction is requested, . . . it
should be given ‘if it is supported by substantial evidence . . . .’”
(People v. Wilkins (2013) 56 Cal.4th 333, 347.) Substantial
evidence means evidence that would allow a reasonable trier of
fact to find the defendant guilty beyond a reasonable doubt.
(People v. Covarrubias (2016) 1 Cal.5th 838, 890 [substantial
evidence is “evidence that is reasonable, credible, and of solid
value—from which a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt”]; People v. Cole
(2004) 33 Cal.4th 1158, 1206 [“A trial court must instruct the
jury on every theory that is supported by substantial evidence,
that is, evidence that would allow a reasonable jury to make a
determination in accordance with the theory presented under the
proper standard of proof”].)
Esquivel contends the evidence did not support instructing
the jury on the kill zone theory for two reasons: (1) the crime
scene was not a confined space, and (2) the force he used, 12
shots, was insufficient to establish a kill zone. A defendant is
guilty of attempted murder only if the defendant had a specific
intent to kill and committed a direct but ineffectual act toward
accomplishing that goal. (People v. Perez (2010) 50 Cal.4th 222,

-- 7 of 21 --

8
229.) The defendant’s intent to kill a particular person cannot be
transferred to another person. “Someone who intends to kill only
one person and attempts unsuccessfully to do so, is guilty of the
attempted murder of the intended victim, but not of others.”
(People v. Bland (2002) 28 Cal.4th 313, 328 (Bland).)
However, a person may intend to kill a primary target and
concurrently intend to kill others as well. If a person uses a
degree of lethal force sufficient to kill everyone in the immediate
vicinity of the primary target, the jury may reasonably conclude
that he or she intended to kill everyone in the immediate vicinity
of the primary target so as to ensure the death of the primary
target. (Bland, supra, 28 Cal.4th at pp. 329-330.) Thus, “‘the
nature and scope of the attack’” may support a reasonable
inference that the defendant intended to kill everyone within a
particular area by creating what is known as a “kill zone.” (Id. at
p. 329.)
The California Supreme Court in Bland gave an example of
a kill zone involving a bomb on an airplane where the assailant
intends to kill a primary target and, by the method of attack,
ensures that all passengers will be killed. (Bland, supra, 28
Cal.4th at pp. 329-330.) Bland gave another example where the
assailant drives by a group of three people and attacks them
using automatic weapon fire or an explosive device devastating
enough to kill everyone in the group. “‘The defendant has
intentionally created a “kill zone” to ensure the death of his
primary victim, and the trier of fact may reasonably infer from
the method employed an intent to kill others concurrent with the
intent to kill the primary victim.’” (Id. at p. 330.) Bland also
cited a kill zone case where the defendants shot at two houses
using high-powered, wall-piercing weapons, and the jury drew a

-- 8 of 21 --

9
reasonable inference that the defendants intended to kill all 11
occupants of the two homes. (Ibid.) Turning to the facts in
Bland, the Supreme Court held that where the defendant and an
accomplice fired a flurry of bullets at a fleeing car intending to
kill the driver, the evidence permitted and “virtually compel[led]”
an inference that the defendant had a concurrent intent to kill
the passengers as well. (Id. at pp. 330-331.)
Esquivel argues the evidence did not support instructing
the jury on the kill zone theory because the attack did not occur
within a “confined space” or a “defined space” capable of being
saturated with deadly force. Esquivel argues the attack occurred
in a relatively open area adjacent to a two-lane street lined by
houses with front lawns where the people were able to run away
from the attack.4 He contrasts the scene of the attack here with
other attack scenarios where victims are located in a car (Bland,
supra, 28 Cal.4th at p. 318; People v. Campos (2007) 156
Cal.App.4th 1228, 1233), in a house (People v. Vang (2001) 87
Cal.App.4th 554, 558), or on an airplane (Bland, at pp. 329-330).
But a kill zone instruction is appropriate if the trier of fact
could reasonably conclude based on the evidence presented at
trial that the defendant used a degree of lethal force sufficient to
kill everyone in the immediate vicinity of the primary target and
that the alleged attempted murder victim inhabited that kill
zone. (Bland, supra, 28 Cal.4th at pp. 329-330; People v. Adams
(2008) 169 Cal.App.4th 1009, 1023.) In those circumstances, the
method of the attack could support a reasonable inference the
4 The photographs of the location where people were
gathered show a short driveway, a small front yard surrounded
by a fence, and a small area in the apron of the driveway, rather
than an expansive open area as Esquivel’s description suggests.

-- 9 of 21 --

10
defendant intended to kill the primary target and concurrently
intended to kill the attempted murder victim. (Bland, at p. 330;
see People v. Perez, supra, 50 Cal.4th at p. 232.) None of the
cases cited by Esquivel indicate that a kill zone must be
contained within a solid barrier or a confined space. To the
contrary, Bland, in citing the example of an assailant who creates
a kill zone by driving by a group of three people and attacking
them with automatic weapon fire or an explosive device, made no
mention of any barrier or confined space. (Bland, at p. 330.)
Esquivel’s second argument is similarly misplaced. He
argues that given the number of shots fired—no more than 12
and maybe as few as six or seven—the degree of lethal force was
insufficient to create a kill zone. The argument is both
unpersuasive and unsupported by the case law. On this record,
the jury could reasonably conclude that in firing 12 shots toward
a group of people, including Macias, Esquivel intended to kill not
only Macias but also everyone in the immediate vicinity of
Macias. As the court pointed out in People v. Vang, supra, 87
Cal.App.4th at page 564, “Defendant’s argument might have
more force if only a single shot had been fired in the direction of
where the [targets] could be seen.” But shooting a dozen bullets
at a target standing in a group of people matches the Bland
court’s description of a “hail of bullets” sufficient to create a kill
zone. (Bland, supra, 28 Cal.4th at p. 330 [“When the defendant
escalated his mode of attack from a single bullet aimed at A’s
head to a hail of bullets or an explosive device, the factfinder can
infer that, whether or not the defendant succeeded in killing A,
the defendant concurrently intended to kill everyone in A’s
immediate vicinity to ensure A’s death”]; People v. Campos,
supra, 156 Cal.App.4th at p. 1244 [“The evidence of [the

-- 10 of 21 --

11
defendant’s] intent to kill [the victim] was overwhelming under
the ‘kill zone’ theory or otherwise” where the defendant pulled up
in a truck and “sprayed the car with nearly a dozen bullets, from
close range”]; see People v. Bragg (2008) 161 Cal.App.4th 1385,
1391, 1393-1397 [kill zone instruction properly given where the
defendant fired seven shots at a group of people].)
Accordingly, the trial court did not err by giving the kill
zone instruction.
B. The Kill Zone Instruction Was Proper
We review de novo whether jury instructions correctly state
the law. (People v. Posey (2004) 32 Cal.4th 193, 218 [“The
independent or do novo standard of review is applicable in
assessing whether instructions correctly state the law”].) “‘When
we review challenges to a jury instruction as being incorrect or
incomplete, we evaluate the instructions as a whole, not in
isolation. [Citation.] “For ambiguous instructions, the test is
whether there is a reasonable likelihood that the jury
misunderstood and misapplied the instruction.”’ [Citation.]”
(People v. Nelson (2016) 1 Cal.5th 513, 544; accord, People v.
Moore (2011) 51 Cal.4th 1104, 1140.)
Esquivel makes two arguments. First he contends the kill
zone instruction was erroneous because it allowed the jury to
convict him without finding he intended to kill Juarez, and
second, he argues the court was required to include additional
language informing the jury that Esquivel could not be found
guilty of attempted murder if the evidence showed only that he

-- 11 of 21 --

12
subjected the people located nearby Macias to a lethal risk and
was indifferent as to whether they were killed.5
The central problem with the first argument is that
Esquivel does not explain how the language of the instruction as
given permitted the jury to convict him without finding he
intended to kill Juarez. The trial court instructed the jury that to
convict Esquivel of the attempted murder of Juarez, the
prosecution had to prove either that Esquivel intended to kill
Juarez or that Esquivel intended to kill everyone within the kill
zone. Thus, the instruction expressly required an intent to kill
either Juarez or everyone within the kill zone and did not allow
the jury to convict Esquivel without finding such an intent to kill.
(See Bland, supra, 28 Cal.4th at pp. 329-330 [the kill zone theory
applies when the nature and scope of the attack support a
reasonable inference the defendant intended to kill the primary
target and concurrently intended to kill everyone in the
immediate vicinity of the primary target].)
Next, Esquivel argues the kill zone instruction was
erroneous because it lacked clarifying language. But trial
counsel failed to propose such language and, thus, to the extent
Esquivel claims the instruction was erroneous because it was
incomplete, he forfeited his claim. “‘A party may not complain on
appeal that an instruction correct in law and responsive to the
evidence was too general or incomplete unless the party has
requested appropriate clarifying or amplifying language.’
5 The California Supreme Court has granted review in a case
presenting the issue whether the trial court in instructing the
jury with CALCRIM No. 600 properly instructed the jury on the
kill zone theory. (People v. Canizales (2014) 229 Cal.App.4th 820,
review granted Nov. 19, 2014, No. S221958.)

-- 12 of 21 --

13
[Citations.]” (People v. Landry (2016) 2 Cal.5th 52, 99-100 [the
defendant forfeited claim that the jury should have been
instructed that instructions on circumstantial evidence applied
specifically to expert testimony]; accord, People v. Covarrubias,
supra, 1 Cal.5th at p. 901 [the defendant forfeited claim that
instruction regarding natural and probable consequences should
have incorporated a reasonable person standard]; People v.
Grimes (2016) 1 Cal.5th 698, 724 [the defendant forfeited claim
that instruction regarding direct evidence should have explained
the requirement of proof beyond a reasonable doubt as applied to
direct evidence].)
Even if we were to reach the argument, the case upon
which Esquivel relies, People v. McCloud (2012) 211 Cal.App.4th
788, fails to support his contention that a kill zone jury
instruction requires clarification of the disqualifying
circumstances, let alone imposes a sua sponte obligation upon the
trial court to so instruct. In McCloud the court found, “The
record contains no evidence to support application of the kill zone
theory,” not that the instruction given was erroneous due to its
lack of clarifying language. (Id. at p. 792.) McCloud stated that
where a defendant only subjected people nearby the primary
target to a lethal risk and was indifferent to whether they were
killed, the kill zone theory did not apply. (Id. at p. 798.) The
McCloud court went on to find that the facts presented did not
support a kill zone instruction because (1) the defendants fired
only 10 shots at a group of 46 people and there was no evidence
the defendants intended to kill all 46 people with 10 bullets (id.
at pp. 799-800) and (2) the prosecution did not argue there was a
primary target, “so the argument presented no factual basis for
application of the kill zone theory. The theory applies only if the

-- 13 of 21 --

14
defendant chooses, as a means of killing the primary target, to
kill everyone in the area in which the primary target is located;
with no primary target, there can be no area in which the
primary target is located and hence no kill zone.” (Id. at pp. 801-
802.) McCloud did not state a kill zone instruction must include
specific language that a defendant who was merely indifferent to
the death or survival of nontargeted individuals cannot be guilty
of attempted murder. Nor does Esquivel cite to any case that
stands for such a proposition, or point to any a case that criticizes
CALCRIM No. 600 for failing to include such language.
Accordingly, the instruction as given was not erroneous.
C. The Trial Court Properly Declined To Conduct an Inquiry
into Possible Juror Misconduct
1. The Trial Court Proceedings
On September 28, 2015, at 1:35 p.m. the jury began its
deliberations, and shortly thereafter, requested testimony to be
read back and asked to view the video recordings presented at
trial. The trial court excused the jury at 4:30 p.m.
The next morning, the deliberations resumed, and shortly
thereafter, the jury requested clarification on the kill zone
instruction. Counsel agreed the appropriate response was to
refer the jury to CALCRIM No. 600. Later that same morning,
the jury submitted another written request, stating: “Several
jurors have concern for safety/retaliation after the trial. What is
the procedure for the jurors leaving the courthouse after the
verdict is read? One of the jurors is concerned she might have
been followed after leaving yesterday.”
Discussing the matter with counsel, the trial court stated:
“I don’t know if it’s going to create an issue with regard to

-- 14 of 21 --

15
whether or not she is able to continue to deliberate and who is
responsible for following her. There are a lot of questions that
could be asked, or there could be no questions asked, frankly.
They are not asking—that person is not asking to be relieved
from their service. They haven’t indicated that they have—that
they are so fearful they can’t make a decision.”
The trial court continued: “I’m intending to tell them they’ll
be escorted out and I am reminding them that they must make
their decision based only on the evidence that they receive in the
courtroom and nothing else . . . .” Then the following discussion
occurred:
Defense counsel: “I would ask the court to remind them
and tell them the procedural information leaving the courtroom.
And I don’t have any other concession.”
The court: “Okay. So you—at this time you are not asking
to—this court to inquire any further?”
Defense counsel: “No.”
The court: “Okay. And that’s a double negative. It’s my
fault. Are you asking this court to do—inquire any further?”
Defense counsel: “No.”
The court responded in writing to the jury: “The jurors will
be escorted from the courtroom and from the building, when you
are ready and if requested, by a sheriff deputy. [¶] Please note
all of CALCRIM [No.] 222—particularly in this context—in
reaching your verdict, you must disregard anything you saw or
heard when the court was not in session, even if it was done or
said by one of the parties or witnesses. [¶] Please do not hesitate
to raise this concern again. As you know, I am here to answer
your questions.” Both counsel approved of the court’s written
response.

-- 15 of 21 --

16
After the verdict, two jurors requested an escort out of the
courthouse.
2. Standard of Review
“‘“‘The decision whether to investigate the possibility of
juror bias, incompetence, or misconduct—like the ultimate
decision to retain or discharge a juror—rests within the sound
discretion of the trial court. [Citation.] The court does not abuse
its discretion simply because it fails to investigate any and all
new information obtained about a juror during trial.’” [Citation.]
A hearing is required only where the court possesses information
which, if proved to be true, would constitute “good cause” to doubt
a juror’s ability to perform his or her duties and would justify his
or her removal from the case.’ [Citation.]” (People v. Williams
(2013) 58 Cal.4th 197, 290; accord, People v. Sánchez (2016) 63
Cal.4th 411, 459.)
3. The Trial Court Acted Within Its Discretion
Esquivel contends the trial court erred by failing to conduct
an inquiry into possible juror misconduct. “‘An accused has a
constitutional right to a trial by an impartial jury. [Citations.]
An impartial jury is one in which no member has been
improperly influenced [citations] and every member is “‘capable
and willing to decide the case solely on the evidence before it’”
[citations].’ [Citation.]” (People v. Hensley (2014) 59 Cal.4th 788,
824.)
A juror’s receipt of information about a party or the case
outside of the evidence presented at trial is improper and is
considered juror misconduct even if the juror receives the
information passively or involuntarily. (People v. Cowan (2010)

-- 16 of 21 --

17
50 Cal.4th 401, 507.) The trial court has a duty to investigate
when it becomes aware of the possibility that a juror has
committed misconduct or has been exposed to improper
influences. (People v. Linton (2013) 56 Cal.4th 1146, 1213.) The
court must make whatever inquiry is reasonably necessary to
determine whether to discharge the juror and whether the
impartiality of other jurors has been affected. (Ibid.; People v.
Davis (1995) 10 Cal.4th 463, 535.) “However, ‘“not every incident
involving a juror’s conduct requires or warrants further
investigation.”’” (Cowan, at p. 506; see People v. Williams, supra,
58 Cal.4th at p. 290.)
The note from the jury stated that several jurors were
concerned about retaliation and their safety, asked about the
procedure for leaving the courthouse after the verdict was read,
and stated that one juror thought she might have been followed.
The court noted that the juror who believed she might have been
followed was not asking to be relieved from service and did not
indicate that she could not serve as an impartial juror. In its
written response to the jury, the court stated that a peace officer
would escort the jurors from the building after the trial if
requested, referred the jury to CALCRIM No. 222, and reiterated
the instruction to disregard anything the jurors perceived outside
of the trial.6 If the jury had any further concerns about their
safety, the court invited them to raise the issue again.
Apparently satisfied with the court’s response, the jury did not
raise any further concerns about their safety.
6 Defense counsel did not object to this response and
specifically stated no further inquiry was necessary.

-- 17 of 21 --

18
We conclude the trial court acted within its discretion when
it chose not to conduct any further inquiry. The court’s response
addressed the jury’s stated concern regarding safety and
reminded the jurors of their duty to disregard external
influences. The court reasonably concluded that providing an
escort after the end of trial would satisfy the jury’s concerns and
that the jury, which had already submitted several written
requests and was not reluctant to express its concerns, had no
further concerns regarding its safety. The juror who said she
might have been followed did not seek to be excused. Given its
direct and remedial response to the jury’s concerns, the court did
not abuse its discretion when it chose not to conduct a further
formal hearing. (People v. Williams, supra, 58 Cal.4th at pp. 289-
291.)
D. The Case Must Be Remanded for Resentencing
At the time of Esquivel’s sentencing in December 2015,
section 12022.53, subdivision (h), expressly precluded the court
from striking a firearm enhancement under the statute. (Stats.
2010, ch. 711, § 5.) As amended by Senate Bill No. 620 (2017-
2018 Reg. Sess.), effective January 1, 2018, section 12022.53,
subdivision (h), now gives the sentencing court the discretion to
strike a firearm enhancement in the interest of justice pursuant
to section 1385.7 (Cal. Const., art. IV, § 8, subd. (c)(1) [statutes
7 “The court may, in the interest of justice pursuant to
Section 1385 and at the time of sentencing, strike or dismiss an
enhancement otherwise required to be imposed by this section.
The authority provided by this subdivision applies to any
resentencing that may occur pursuant to any other law.”
(§ 12022.53, subd. (h).)

-- 18 of 21 --

19
enacted at a regular session go into effect on Jan. 1 of the
following year].)
In re Estrada (1965) 63 Cal.2d 740 held that, absent
evidence to the contrary, the court must presume the Legislature
intended that any statutory amendment mitigating punishment
for a particular crime applies retroactively to all defendants
whose judgments were not yet final on the operative date of the
amendment.8 (Id. at pp. 747-748; see People v. Brown, supra, 54
Cal.4th at p. 324.) The Estrada rule applies not only to
amendments reducing the penalty for a crime, but also to
amendments giving the court discretion to impose a lesser
penalty. (People v. Francis (1969) 71 Cal.2d 66, 76.)
The Estrada rule applies here because section 12022.53,
subdivision (h), as amended, gives the trial court the discretion to
impose a lesser sentence by striking firearm enhancements, and
the amendment became effective before this case became final on
appeal. The People concede the Estrada rule applies, and the
amendment applies retroactively.
“‘Defendants are entitled to sentencing decisions made in
the exercise of the “informed discretion” of the sentencing court.
[Citations.] A court which is unaware of the scope of its
discretionary powers can no more exercise that “informed
discretion” than one whose sentence is or may have been based
on misinformation regarding a material aspect of a defendant’s
record.’ [Citation.] In such circumstances, we have held that the
appropriate remedy is to remand for resentencing unless the
8 The Estrada rule is an exception to the general rule that
penal statutes are presumed to operate prospectively only unless
expressly stated otherwise. (§ 3; see People v. Brown (2012) 54
Cal.4th 314, 324.)

-- 19 of 21 --

20
record ‘clearly indicate[s]’ that the trial court would have reached
the same conclusion ‘even if it had been aware that it had such
discretion.’ [Citations.]” (People v. Gutierrez (2014) 58 Cal.4th
1354, 1391.)
In this case, the record does not clearly indicate the trial
court would have declined to strike the firearm enhancements if
it had the discretion at the time of sentencing. The court
commented the shooting was “egregious,” yet imposed a
concurrent, rather than consecutive, sentence for the attempted
murder of Juarez. Thus, the court did not impose the maximum
aggregate sentence. Accordingly, the trial court must be given
the opportunity to decide whether to exercise its discretion under
section 12022.53, subdivision (h), as amended.

-- 20 of 21 --

21
DISPOSITION
The judgment of conviction is affirmed; the sentence is
vacated and the matter is remanded for the limited purpose of
allowing the trial court to resentence Esquivel in accordance with
the principles expressed in this opinion.
BENSINGER, J.*
We concur:
PERLUSS, P. J.
ZELON, J.
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.

-- 21 of 21 --