P. v. Esquivel

Filed 3/26/20 P. v. Esquivel CA2/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent,
v.
RANDOLPH STEVEN ESQUIVEL,
Defendant and Appellant.
B294024
(Los Angeles County
Super. Ct. No. NA102362)
APPEAL from a judgment of the Superior Court of Los
Angeles County, Jesus I. Rodriguez, Judge. Affirmed.
Paul R. Kraus, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Steven D. Matthews and Rama R.
Maline, Deputy Attorneys General, for Plaintiff and Respondent.
__________________________

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Defendant and appellant Randolph Steven Esquivel was
convicted, by plea, of willfully attempting to burn a structure
(Pen. Code, § 455).1 A prison sentence of five years was imposed,
but execution was suspended, and he was granted probation.
Upon violation of probation, his probation was revoked and the
previously imposed sentence executed. Defendant appeals,
arguing: (1) the court was unaware of its discretion to reinstate
probation; and (2) his previously-imposed sentence is now
improper in several respects, due to changes in the law. We
disagree and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Underlying Offense
Around 1:00 a.m., on August 7, 2015, defendant pounded on
the window of the apartment occupied by Cecilia Hernandez and
Iker Garcia. Garcia scared defendant off, but defendant returned
20 minutes later. At this point, he poured a bottle of lighter fluid
on the apartment’s front door and Garcia’s truck. Defendant was
arrested at the scene; he appeared intoxicated. Defendant had no
previous relationship with Hernandez or Garcia, but had
previously visited their upstairs neighbor.2
2. Defendant’s Plea
Defendant was charged by information with willful attempt
to burn (§ 455) and possession of flammable material with the
intent to maliciously use (§ 453, subd. (a)). With respect to both
counts, he was alleged to have suffered two prior prison terms
1 All further statutory references are to the Penal Code
unless otherwise stated.
2 The probation report in connection with this incident
suggests the person who lived upstairs was defendant’s
girlfriend.

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(§ 667.5, subd. (b)), a prior strike (§ 667, subds. (b)-(j)), and a
prior serious felony conviction (§ 667, subd. (a)(1)).
On September 11, 2015, Defendant agreed to enter a
negotiated plea of no contest to the count of willful attempt to
burn, and admit the priors, in exchange for a five-year suspended
sentence.
The sentence was calculated as follows: The three-year
high term for intent to burn, plus two years for the two prior
prison terms. The strike and prior serious felony conviction
enhancements were stricken in the interests of justice. The five-
year term was imposed and stayed, pending successful
completion of five years formal probation. The court explained to
defendant that if he violated probation, he would be sentenced to
the full five years. The court explained, “Even if I’m not around,
there is no other judge that has the option or discretion to strike
it and simply give you a better sentence. The five years have
been imposed and stayed.”
Relevant conditions of probation required defendant to obey
all laws, use only his true name, not give false information to any
police officer, and not use force against anyone. Defendant
accepted all the terms and conditions of probation.
Certain fines and fees were also imposed: (1) a restitution
fine of $300 (Pen. Code, § 1202.4, subd. (b)); a criminal conviction
facilities assessment fee of $30 (Gov. Code, § 70373, subd. (a));
and a court security fee of $40 (Pen. Code, § 1465.8, subd. (a)(1)).

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3. Defendant is Reminded to Report to Probation
On June 14, 2016, the matter was called for a possible
probation violation.3 Defendant was present in court and was
told to “report to probation without any excuses.”
4. Probation is Revoked for Failure to Report
Two years later in August 2018, the probation officer
submitted a report “Regarding Desertion of Probationer.” It
indicated that defendant last reported on March 9, 2018, failed to
report on April 27, 2018, and had not reported since. Probation
did not have a current telephone number or address for
defendant, and recommended that probation be revoked and a
bench warrant be issued.
On August 17, 2018, probation was revoked and a bench
warrant issued. In September 2018, defendant was arrested,
appeared in court, and was remanded pending the receipt of a
supplemental probation report.
5. The Probation Officer’s Supplemental Report
On October 10, 2018, the probation officer submitted a
supplemental report. The report indicated two arrests since
defendant last reported to probation: (1) an arrest in Brea for
providing false identification to police (Pen. Code, § 148.9) and
driving without a license (Veh. Code, § 12500, subd. (a)); and
(2) an arrest in Fullerton for theft (Pen. Code, § 484). The report
also disclosed that, while defendant was on probation in this case,
he was also under post-release community supervision (Pen.
Code, § 3455) in another case, and previously had multiple
arrests for unidentified violations of his post-release community
supervision.
3 The record on appeal is missing the probation report which
led to this hearing.

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The probation officer interviewed defendant, who claimed
that the reason he had failed to report to probation was because
he was in custody for violating his post-release community
supervision. “According to the defendant, when asked if he
suffered any new arrests since absconding from probation the
defendant stated, yes, and explained they were mistakes and
they were simple violations based on his appearance while out in
the community. He stated he is frequently stopped by officers for
this reason.”
The probation officer’s report included a recommendation
that probation be reinstated with an additional term and
condition of suitable jail time. The officer explained, “Since this
is the defendant[’]s first potential probation violation on this
case,[4] and given the defendant[’]s prior reporting history it
appears he has made an effort to comply with probation
conditions. According to the defendant the only reason why he is
even before the court for this violation is simply because he was
in custody at the time and was unable to report to his probation
officer.”
6. Motion Requesting Revocation of Probation
A few weeks later, the prosecution filed a motion
requesting revocation of probation, which painted a somewhat
different picture of defendant’s violations. The motion
acknowledged that defendant’s probation had already been
preliminarily revoked, but alleged further facts constituting a
violation of probation. Specifically, the motion attached police
reports detailing the Brea and Fullerton arrests alluded to in the
4 The probation officer was apparently unaware of the
potential violation in June 2016.

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supplemental probation report. It also represented that on
March 6, 2018, defendant was convicted of domestic violence
(§ 243, subd. (e)).
The Brea police report indicated that in June 2018,
defendant had been driving a car with an expired registration
and with no driver’s license. He identified himself to police using
his brother’s name, and subsequently admitted that he had lied
about his identity because he was wanted for a probation
violation. The Fullerton police report indicated that in August
2018, defendant and his girlfriend were arrested for shoplifting
from a Target. Again, defendant gave police his brother’s name;
his true identity was revealed after he was fingerprinted.
7. Probation Revocation Hearing
At the hearing on the probation violation, the prosecution
sought judicial notice of the file regarding defendant’s domestic
violence conviction. Defendant objected that there was no
confirmation that he was the defendant in that case. The court
overruled the objection and took judicial notice, stating that the
identity of the defendant does not go to the issue of judicial
notice. Then, turning to the issue of identity, the court concluded
that defendant had, in fact, been the defendant who sustained
the conviction, based on the identical name and date of birth,
similar physical description, and the victim having been
associated with defendant. The file indicated that the domestic
violence incident occurred on February 23, 2017, and defendant
entered his plea in that case on March 3, 2018.
The court also took judicial notice of all of the files before it,
which included the Brea and Fullerton police reports.
Finally, the court heard testimony regarding defendant’s
failure to report. Deputy Probation Officer Ronald Story was
defendant’s supervisor for post-release community supervision,

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and was also assigned to supervise him on probation in this case.
He explained that defendant last reported to him in August 2017.
Since that time, he has either been in custody or in absconsion.
In April 2018, when defendant was required to report to
Officer Story, he telephoned and explained that his girlfriend had
lost a baby when she was eight months pregnant, and he was
distraught. He claimed to have forgotten when to report. Officer
Story told him to report before April 27 or be in violation;
defendant did not report. Officer Story testified that defendant is
required to inform him of arrests or convictions, and confirmed
that when defendant called in April 2018, he did not tell Officer
Story about the domestic violence conviction he had sustained in
early March 2018.
Defendant offered no witnesses in defense. Instead,
counsel argued that this was not a “significant violation.”
Counsel argued that there was confusion regarding defendant’s
reporting requirements, and he was having difficulty due to his
girlfriend’s miscarriage. Counsel noted that the file for the
domestic violence conviction indicated that, at the time of
defendant’s plea, he was in custody and was given time served.
Counsel then speculated that if defendant “was in custody when
this miscarriage was happening, of course, he would have pled to
get out of custody in order to be present for his girlfriend when
she’s going through this difficult time.”
The court found defendant in violation of probation for
multiple reasons: he failed to report to probation; he failed to
inform probation of his domestic violence conviction; and he did,
in fact, sustain the domestic violence conviction.
8. Sentencing
The court turned to sentencing. Defendant argued for
reinstatement of probation with jail time, arguing that defendant

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was now getting mental health services for PTSD and bipolar
disorder, and that he had a better support system in place.
The court stated, “if the court will give the defendant any
time, even one day, the court must give the suspended time
because he was already sentenced. The law is clear. I don’t have
any discretion, no authority. The case law is quite clear on that.
[¶] Even if I had the authority not to – given the discretion, I will
not exercise that discretion because the defendant was convicted
and physically abused the mother of his future child.”
Although defense counsel suggested the court had
misidentified the domestic violence victim, the court found this to
be a distinction without a difference, stating, “So if he beat the
mother of his future child, that’s horrible. If he beat another
woman, that’s horrible too. No matter what, he was convicted of
beating a woman.” Defense counsel then said the word “beating”
was a misstatement of the evidence; the court responded, “Is it
looking at them with a strong face? What is domestic violence?”
Defense counsel replied that there are different types of domestic
violence. The court ended argument; defense counsel stated that
the court was “misstating what’s in front of the court.”
Concluding that there were at least four to six probation
violations, the court imposed the five-year sentence on which
execution was previously suspended. The court also stated, “The
fines are mandatory minimum [fines].” It imposed the $300
restitution fine, $30 court security fee and $40 criminal
conviction facilities assessment fee.5
5 The court also purported to impose “a $300 parole
revocation restitution fine per [Penal Code] section 1202.44. That
fine is stayed pending successful completion of parole.”
Defendant does not address this fine, nor do we.

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Defendant filed a timely notice of appeal.
DISCUSSION
On appeal, defendant initially argued: (1) the court
misunderstood its discretion to reinstate probation, and therefore
did not make an impartial appraisal of whether probation should
be reinstated; and (2) the restitution fine and court fees could not
have been imposed without a determination of his ability to pay
them, under the recent decision in People v. Dueñas (2019)
30 Cal.App.5th 1157 (Dueñas). In supplemental briefing,
defendant argued a third ground: an intervening change in the
law that requires the two prior prison term enhancements to be
stricken. As we shall discuss, the parties’ briefing on the prior
prison term enhancements also applies to, and defeats,
defendant’s Dueñas argument.
1. There Was No Error in Failing to Reinstate Probation
“A probation violation does not automatically call for
revocation of probation and imprisonment. [Citation.] A court
may modify, revoke, or terminate the defendant’s probation upon
finding the defendant has violated probation. [Citation.] The
power to modify probation necessarily includes the power to
reinstate probation. [Citations.] Thus, upon finding a violation
of probation and revoking probation, the court has several
sentencing options. [Citation.] It may reinstate probation on the
same terms, reinstate probation with modified terms, or
terminate probation and sentence the defendant to state prison.
[Citations.] [¶] If the court decides to reinstate probation, it may
order additional jail time as a sanction.” (People v. Bolian (2014)
231 Cal.App.4th 1415, 1420 (Bolian).) If the court terminates
probation, the sentence options depend on whether imposition of
sentence had previously been suspended, or if sentence had been
imposed but execution suspended. In the former situation, the

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court has full sentencing discretion; in the latter situation, “upon
revocation and termination of probation, the court must order
that imposed sentence into effect.” (Id. at pp. 1420-1421.)
“The decision whether to reinstate probation or terminate
probation (and thus send the defendant to prison) rests within
the broad discretion of the trial court. [Citations.]” (Bolian,
supra, 231 Cal.App.4th at p. 1421.) “ ‘The discretion of the court
to revoke probation is analogous to its power to grant the
probation, and the court’s discretion will not be disturbed in the
absence of a showing of abusive or arbitrary action. [Citations.]’
[Citation.]” (People v. Urke (2011) 197 Cal.App.4th 766, 773.)
However, if the court is unaware of its discretionary
authority, it cannot exercise informed discretion. Remand is
appropriate if the record indicates the court misunderstood or
was unaware of the scope of its discretionary powers. (Bolian,
supra, 231 Cal.App.4th at p. 1421.)
Defendant argues the court did not understand its
discretionary power to reinstate probation, based on the court’s
statement: “[I]f the court will give the defendant any time, even
one day, the court must give the suspended time because he was
already sentenced. The law is clear. I don’t have any discretion,
no authority.”
This is a correct statement of the court’s discretion if the
court does not reinstate probation, because sentence was
previously imposed with only its execution suspended. The court
may not “re-sentence.” However, the statement is incorrect if the
trial court meant that it lacked discretion to reinstate probation
with suitable jail time.
Taken alone, the trial court’s statement is ambiguous. In
context, however, the court immediately addressed the
circumstance of what it would do if it did, in fact, have discretion:

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“[G]iven the discretion, I will not exercise that discretion because
the defendant was convicted and physically abused the mother of
his future child.” Thus, even if the court was unclear as to its
discretion to reinstate probation, the court unambiguously
indicated that it would not exercise its discretion to do so.
Focusing on several of the court’s statements during
sentencing, defendant argues that the court did not truly exercise
its discretion. We disagree; the essence of the court’s conclusion
was that defendant’s domestic violence conviction takes the case
out of the realm of those in which the court might reinstate
probation. Even if we were to accept defendant’s argument that
the trial court was curt with defense counsel and may not have
articulated its discretion clearly, it would not be grounds for
reversal. Those claims do not undermine the trial court’s finding
that defendant had violated his probation terms by his conviction
for domestic violence and his repeated failures to report to his
probation officer, both of which were proper grounds to revoke
probation.
Similarly, defendant draws support from the fact that the
court “did not discuss any of the factors which defense counsel
offered in opposition or in mitigation.” But there is no authority
which requires a court to address and reject every factor raised
by a defendant at a probation violation hearing, particularly
when the court expresses the reasons for its refusal to reinstate
probation. That the trial court did not affirmatively acknowledge
facts that might have supported reinstatement of probation does
not detract from the trial court’s proper exercise of its decision or
suggest, as appellant does, that the trial court “failed to make an

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impartial appraisal” of whether defendant should have been
given a second chance on probation.6
We find no abuse of discretion. While defendant would
characterize his probation violation as a simple failure to report
while suffering the trauma of his girlfriend’s miscarriage, the
facts paint a very different picture. When defendant called
Officer Story in April 2018, explaining that his failure to report
was caused by the girlfriend’s miscarriage (and neglecting to
mention the intervening domestic violence conviction), Officer
Story gave defendant a second chance and told him to report by
April 27. Defendant did not report in April. Defendant did not
report in May, June, July or August, either, and a bench warrant
was issued. During this time, defendant twice intentionally gave
a false name to police – because he knew he was wanted for a
probation violation, and was also repeatedly shoplifting with his
girlfriend. This was not a distraught man accidentally violating
probation in a confused haze; this was a defendant who knew he
was in violation of probation and intentionally lied to police to
avoid the consequences. The trial court’s decision to not reinstate
probation was well-supported.
2. The Sentencing Issues Are Not Cognizable on This
Appeal
A. Introduction to the Sentencing Issues
Effective January 1, 2020, section 667.5, subdivision (b)
was amended to apply only if the defendant’s prior prison terms
were for sexually violent offenses. (Stats. 2019, ch. 590, § 1.)
6 Defendant attempts to parlay his argument that the court
misunderstood its discretion into a federal due process violation
because the court was not an impartial arbiter. We see no
evidence of impartiality.

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Defendant’s prior prison terms were not. Defendant contends,
and the prosecution agrees, that this amendment is retroactive,
and applies to all cases not yet final at the time of its effective
date. But, respondent argues defendant’s sentence became final
for the purposes of retroactive application of ameliorative
amendments when it was imposed in 2015, and defendant failed
to challenge it on appeal at the time.
Defendant also challenges the imposition of a restitution
fine and two court fees without a hearing on his ability to pay,
under the relatively recent authority of Dueñas. But if the fine
and fees were imposed, and became final, back in 2015, it also is
too late to challenge them on this appeal.
Thus, the issue raised by both contentions – which we find
to be dispositive – is when defendant’s sentence became final for
the purpose of challenging the sentence on appeal.
B. Appealability of a Probationary Judgment
Section 1237, subdivision (a) provides that an appeal may
be taken from a judgment of conviction, and that, for purposes of
appealability, an order granting probation “shall be deemed to be
a final judgment.”
For this reason, if a defendant receives a probationary
sentence following a finding of guilt at trial, the defendant must
immediately appeal to challenge any errors at trial; he cannot
wait until probation is revoked and he is sentenced to prison to
then raise those issues. (People v. Howard (1965) 239 Cal.App.2d
75, 77.) “Under section 1237 of the Penal Code, appellant could
have challenged the merits of his conviction on an appeal from
the order granting probation which is deemed to be a final
judgment. [Citation.] Appellant’s ‘acceptance of probation would
not . . . prevent him from taking advantage of any error inhering
in the judgment . . . but merely forecloses action based on errors

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committed at the trial which his acceptance of the benefits . . .
estops him from reviewing.’ [Citation.] Since no appeal was
taken within the allowable time from this order, appellant is now
precluded from going behind the order granting probation.
[Citation.]” (Ibid.)
C. Appealability of a Probationary Judgment Extends to
the Imposed Sentence on Which Execution is
Suspended
The issue of whether a sentence that has been imposed, but
with execution suspended pending probation, is final for purposes
of appeal at the time of the order granting probation was
addressed in People v. Scott (2014) 58 Cal.4th 1415. That case
concerned the Criminal Justice Realignment Act, which changed
punishment for certain offenders from state prison to county jail.
The Realignment Act specifically provided that it applied to any
person sentenced on or after October 1, 2011. In Scott, the
defendant’s prison sentence was imposed prior to the October 1,
2011 date, but it was suspended until defendant’s probation was
revoked sometime later. The Supreme Court concluded the
defendant was not eligible for jail under the Realignment Act; its
rationale was that defendant had been “sentenced” when the
sentence was initially imposed. (Id. at p. 1421.) The court held a
defendant is sentenced when a judgment “imposing punishment
is pronounced even if execution of the sentence is then
suspended. A defendant is not sentenced again when the trial
court lifts the suspension of the sentence and orders the
previously imposed sentence to be executed.” (Id. at p. 1423.)
The defendant’s failure to appeal from the originally imposed
sentence barred a future appeal of the sentence upon probation
violation.

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The same analysis governed People v. Ramirez (2008)
159 Cal.App.4th 1412, 1423. In that case, a four-year sentence
was imposed but execution was suspended. When defendant
violated probation for a second time the parties entered into a
negotiated disposition: Defendant was reinstated on probation
with some additional terms and conditions. As part of the
agreement, the court also increased the four-year suspended
sentence to five years. When defendant subsequently violated
probation and the five-year sentence was executed, defendant
sought to challenge the improper increase. He could not do so, as
he had failed to timely appeal the increase when it was imposed
as part of the negotiated disposition. “[W]hen a court imposes
sentence but suspends its execution at the time probation is
granted, a defendant has the opportunity to challenge the
sentence in an appeal from the order granting probation.
[Citation.] If the defendant allows the time for appeal to lapse
during the probationary period, the sentence becomes final and
unappealable. [Citation.] This is so regardless of the fact the
defendant will not serve the sentence unless the court revokes
and terminates probation before the probationary period expires.”
(Id. at p. 1421.) The appellate court also rejected the defendant’s
argument that the court lacked jurisdiction to increase the
sentence, and jurisdictional errors may be raised at any time.
The court found that the trial court had exceeded its jurisdiction
but had not lacked jurisdiction. The failure to appeal the
increased sentence at the time it was imposed was fatal. (Id. at
pp. 1421-1427.)
The Supreme Court recently resolved a related, but
distinguishable, issue, holding that when a convicted defendant
is placed on probation with imposition of sentence suspended, the
judgment of conviction is not final. (People v. McKenzie (2020)

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___ Cal.5th ___ [2020 WL 939371].) In that case, the defendant
pleaded guilty in 2014, and imposition of sentence was suspended
pending probation. In 2016, defendant’s probation was revoked,
and a prison sentence imposed. While defendant’s appeal was
pending, an ameliorative statute was enacted and went into
effect. Defendant sought the benefit of that statute. (Id., at
p. *1.) The prosecution argued that defendant was not entitled to
the benefit of the statute as he did not appeal his conviction in
2014. (Id. at p. *2.) The Supreme Court disagreed. For these
purposes, there is no judgment of conviction without a sentence.
(Id. at p. 3.) Prior to the imposition of sentence, the case was not
sufficiently final. The McKenzie court did not expressly discuss
the finality of the situation raised by this case – the finality when
sentence is imposed but execution suspended. However, its
conclusion that imposition of sentence is necessary for a
judgment of conviction is in line with Scott and Ramirez.
D. Application to the Present Appeal
1. The Prior Prison Term Issue is Not Cognizable.
In 2015, defendant admitted the two then-valid prior prison
terms, and sentence was imposed on the prior prison terms,
although execution of sentence was suspended. Defendant did
not timely appeal and that sentence became final. The
subsequent amendment to section 667.5, subdivision (b) has no
effect on this case. As to this amendment, defendant is situated
the same as if sentence had not only been imposed but executed
in 2015 – that is, if he had been immediately committed to prison.
The sentence would have been final in 60 days, and the 2020
amendment would have no retroactive application to defendant.
That defendant here had the advantage of a grant of probation
and an opportunity to avoid prison does not provide an

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opportunity to take advantage of a subsequent statutory
amendment enacted long after his sentence became final.7
2. The Dueñas Issue is Not Cognizable
Defendant challenges his $300 restitution fine, $30 court
security fee and a $40 criminal conviction facilities assessment
fee under Dueñas, because the court did not determine his ability
to pay the fine and fees prior to their imposition.
The problem with defendant’s argument is that once again
the fine and fees were imposed in 2015 and appellate review is
now time-barred. The court referred to the fine and fees again
when probation was revoked, stating, “The fines are mandatory
minimum [fines].” On appeal, the prosecution takes the position
that the court did not impose a second set of fines and fees, but
simply “again went over appellant’s fines.” While the court’s
statement may have been ambiguous, the prosecution’s implied
concession is correct. A restitution fine imposed at the time
probation is granted survives the revocation of probation; a
second restitution fine would be unauthorized. (People v.
Chambers (1998) 65 Cal.App.4th 819, 820-821.) The proper
procedure is to simply direct that the abstract of judgment reflect
only the fine previously imposed. (People v. Cropsey (2010)
184 Cal.App.4th 961, 965-966.)
Similarly, the $40 criminal conviction facilities assessment
is imposed “on every conviction,” (Pen. Code, § 1465.8) and the
$30 court security fee is likewise imposed “on every conviction”
7 Because the issue is one of finality of judgments, the fact
that defendant’s sentence was the result of a negotiated plea is
irrelevant. Section 1016.8’s ban on plea bargains requiring
defendants to waive future benefits of legislative enactments has
no bearing on the case.

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(Gov. Code, § 70373). As we have explained, defendant was
convicted only once, in 2015, no appeal was taken, and his
sentence has long since become final. The fees could only be
imposed once. Defendant did not appeal the fine or fees at the
time they were imposed; they have therefore become final, and
cannot be challenged on appeal from the revocation of probation.8
DISPOSITION
The judgment is affirmed.
RUBIN, P. J.
WE CONCUR:
BAKER, J.
KIM, J.
8 Here, defendant’s abstract of judgment correctly reflects a
single restitution fine, but does not include the fees at all. It is
unclear if the abstract intentionally omitted the fees as
previously imposed as a condition of probation, or in error.
Although the parties do not address this point, we direct the trial
court to make clear that the abstract of judgment reflects that
only one set of fees and fines has been imposed.

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