Filed 8/26/20 P. v. Santana CA2/8
   NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                         SECOND APPELLATE DISTRICT

                                      DIVISION EIGHT


THE PEOPLE,                                                   B304541

         Plaintiff and Respondent,                            (Los Angeles County
                                                               Super. Ct. No. KA115259)
         v.

JUAN SANTANA,

         Defendant and Appellant.


     APPEAL from a judgment of the Superior Court of Los
Angeles County. Mike Camacho, Judge. Affirmed.
     Brad Kaiserman, under appointment by the Court of
Appeal, for Defendant and Appellant.
     No appearance for Plaintiff and Respondent.

                               _________________________
        In this third appeal, Juan Santana challenges the trial
court’s refusal to strike the firearm enhancement at his
resentencing hearing. Santana’s appointed counsel filed an
opening brief pursuant to People v. Wende (1979) 25 Cal.3d 436
(Wende). Santana filed a supplemental brief raising two issues
which we decided in his previous appeal. We affirm the
judgment.
                  PROCEDURAL BACKGROUND
        This case arose from the shooting death of Patricia Salva in
her home. In the days after her death but before her body was
discovered, Santana, his son, and his girlfriend returned to
Salva’s home several times to steal various items, many of which
were recovered from Santana’s car or his ex-wife’s house. At
closing, defense counsel conceded the evidence demonstrated
Santana’s guilt on burglary, receiving stolen property, and second
degree murder, but urged the jury to acquit him of first degree
murder and to find the personal use firearm enhancements not
true. He did not consult Santana before taking that course,
believing it was a strategic choice within his control.
        The jury found Santana guilty of second degree murder,
second degree burglary, and receiving stolen property. In
connection with the second degree murder count, the jury found
true the firearm enhancements pursuant to Penal Code section
12022.53, subdivisions (b)-(d).1 The trial court imposed a
determinate term of three years for the second degree burglary
conviction, stayed the sentence for the conviction for receiving
stolen property, and imposed an indeterminate term of 15 years
to life for the second degree murder conviction. The court also

1     All further section references are to the Penal Code.




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imposed an additional 25 years to the murder charge for the
firearm enhancement under section 12022.53, subdivision (d).
It stayed the remaining firearm enhancements under section
12022.53, subdivisions (b) and (c). The sentences were ordered to
run consecutively.
       On appeal, Santana argued he did not consent to his trial
counsel’s strategic decision to concede second degree murder to
avoid a conviction for first degree murder. He also argued,
among other things, that insufficient evidence supported the
jury’s finding under section 12022.53, subdivision (d) that he
personally used a firearm to kill Salva. We found Santana’s
Sixth Amendment rights were not violated by his trial counsel’s
concession because nothing in the record showed Santana sought
to maintain his innocence in a way that conflicted with his
counsel’s decision to concede his guilt to some of the charges.
Thus, despite the counsel’s lack of consultation with Santana,
nothing demonstrated counsel’s concession overrode Santana’s
objectives. We also found the evidence was sufficient to support
the jury’s implicit conclusion Santana murdered Salva by
personally shooting her twice. (People v. Santana (July 30, 2019,
B286320) [nonpub. opn.].)
       We therefore affirmed Santana’s convictions but remanded
for the trial court to exercise its discretion to dismiss or strike the
firearm enhancement as authorized by recently amended section
12022.53, subdivision (h). (People v. Santana, supra, B286320
[nonpub. opn.].) We dismissed a second appeal challenging the
trial court’s denial of his motion to strike a $4,490.27 victim
restitution order. (People v. Santana (Oct. 3, 2019, B296399)
[nonpub. opn.].)




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       Santana’s resentencing hearing was held on January 28,
2020. Santana argued there was no direct evidence to support a
finding under section 12022.53, subdivision (d) that he personally
and intentionally used the firearm to kill Salva. He stressed no
witness testified he possessed the gun at the time of Salva’s
death and used it to kill her. Santana also raised the issue of his
trial counsel’s concession to second degree murder.
       The trial court “acknowledge[d] that . . . the evidence
presented at trial [of the possession of the firearm and ultimate
use of the firearm] was circumstantial, absolutely.” However, it
explained, “this is not a case where the court is required to
determine whether or not there is insufficient evidence to support
the gun use enhancements. This is strictly conceding that the
gun use enhancements were sustained by the jury and there was
sufficient evidence in the record to support that finding. This is
an issue before the court as to whether or not, given all the
circumstances of this case, that the gun use enhancements should
be stricken for purposes of sentencing or dismissed entirely, not
because of the insufficiency of the evidence but because of the
overall circumstances of the case.”
       The court declined to exercise its discretion to strike the
firearm enhancements due to the vulnerability of the victim.
Salas was elderly and infirm. The court also focused on the
heinous nature of the crime, noting Santana and his cohorts shot
Salas in the back twice and continued to burglarize her home
while her dead body lay there. The court found no mitigating
circumstances to warrant striking the firearm enhancements.
It retained the original sentence. Santana appealed.




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                           DISCUSSION
       We appointed counsel to represent Santana on appeal.
Appointed counsel filed a Wende brief and notified Santana he
could file a supplemental brief raising any issues he wished the
court to consider. Santana filed a letter brief on July 27, 2020.
       In his brief, Santana repeats the arguments he made at the
resentencing hearing and adds a challenge to the Honorable Mike
Camacho, the judge who presided over his trial and the
resentencing hearing. He again asserts “[n]obody put[] [him] as
the shooter and nobody point[ed] to [him] as the killer.” As a
result, Judge Camacho “went along and convicted [Santana] for
25 years for gun enhancement with evidence that never was.”
He also argues his trial attorney’s tactical decision to concede
second degree murder to avoid a first degree murder conviction
violated his Sixth Amendment rights and showed Santana was
“wrongfully charged for a crime [he] never committed.” As a
result of these perceived injustices, Santana questions whether
Judge Camacho was in “his right senses when he presided over
[his] preliminary hearing.” Santana asserts Judge Camacho sent
Santana “to trial knowing that he did not have the right
information.” Santana urges us to “to look at his ethics practice.”
       We review a court’s discretionary decision to dismiss or
strike a sentencing allegation for abuse of discretion. (People v.
Carmony (2004) 33 Cal.4th 367, 373; People v. Pearson (2019) 38
Cal.App.5th 112, 116 (Pearson).) “ ‘ “In reviewing for abuse of
discretion, we are guided by two fundamental precepts. First,
“ ‘[t]he burden is on the party attacking the sentence to clearly
show that the sentencing decision was irrational or arbitrary.
[Citation.] In the absence of such a showing, the trial court is
presumed to have acted to achieve legitimate sentencing




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objectives, and its discretionary determination to impose a
particular sentence will not be set aside on review.’ ” [Citation.]
Second, a “ ‘decision will not be reversed merely because
reasonable people might disagree. “An appellate tribunal is
neither authorized nor warranted in substituting its judgment for
the judgment of the trial judge.” ’ ” [Citation.] Taken together,
these precepts establish that a trial court does not abuse its
discretion unless its decision is so irrational or arbitrary that no
reasonable person could agree with it.” [Citation.]’ ” (Pearson,
supra, 38 Cal.App.5th at p. 116.)
      Absent a contrary affirmative showing in the record, we
presume the trial court considered the relevant sentencing
factors listed in the California Rules of Court when it determined
whether to strike or dismiss the firearm enhancement. (Pearson,
supra, 38 Cal.App.5th at p. 117; see Cal. Rules of Court, rules
4.409, 4.428(b) [striking enhancements], 4.410 [general objectives
in sentencing], 4.421 [factors in aggravation], 4.423 [factors in
mitigation].)
      The record shows Judge Camacho properly considered the
relevant sentencing factors to determine whether to strike or
dismiss the firearm enhancement. While he found no factors in
mitigation, Judge Camacho cited the vulnerability of the victim
and the heinous nature of the crime as determining factors in
aggravation. (Cal. Rules of Court, rules 4.421(a)(1) [“crime
involved great violence, great bodily harm, threat of great bodily
harm, or other acts disclosing a high degree of cruelty,
viciousness, or callousness”] and 4.421(a)(3) [“victim was
particularly vulnerable”].) Given the facts of the case, Judge
Camacho did not abuse his discretion by declining to strike the
firearm enhancement.




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       Further, Judge Camacho did not abuse his discretion when
he refused to credit Santana’s arguments regarding the Sixth
Amendment violation and the insufficiency of the evidence.
Judge Camacho properly determined those issues were addressed
in our previous opinion and not subject to further review as the
remand was limited to resentencing and the case could not
otherwise by retried. (Griset v. Fair Political Practices Com.
(2001) 25 Cal.4th 688, 701; People v. Superior Court (Gregory)
(2005) 129 Cal.App.4th 324, 331, [“ ‘[r]emittitur transfers
jurisdiction back to the inferior court so that it may act upon the
case again, consistent with the judgment of the reviewing
court’ ”].)
       To the extent Santana seeks to discipline Judge Camacho
for his purported misconduct, we lack authority to discipline a
trial judge. The Commission on Judicial Performance is the
entity responsible for disciplining judges. (Oberholzer v.
Commission on Judicial Performance (1999) 20 Cal.4th 371, 384;
Cal. Const., art. VI, §§ 8, 18.) In any case, there appears no basis
for discipline as the record reveals Judge Camacho properly
discharged his judicial duties. Certainly, Santana has presented
no evidence of bias, abuse of authority, disregard for fundamental
rights, or intentional disregard of the law. (Id. at p. 398.)




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                       DISPOSITION
     The judgment is affirmed.




                                     BIGELOW, P. J.
We concur:




              GRIMES, J.




              STRATTON, J.




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