People v. Yanez CA6
H044528A
| Cal. Ct. App. | Oct 27, 2021Background
- Defendant Jesse Victor Yanez was convicted after trial of four counts of second-degree robbery and one count of assault with a firearm; jury found firearm enhancements true and the court found multiple prior enhancements; total sentence 36 years.
- Surveillance video, witness identifications, and testimony from cohabitant/witness Jesse Diaz supported the People; defense challenged identifications and presented an eyewitness-identification expert.
- At closing the prosecutor argued (inter alia) that someone who robs a place would not go to work afterward; defense did not object and later claimed ineffective assistance for that omission on appeal.
- Defendant also challenged the trial court’s use of CALCRIM No. 315 (instructing jurors to consider witness certainty), and the court’s failure to stay punishment under Penal Code § 654 for the assault committed during a robbery.
- Defendant sought a remand to allow the trial court to exercise newly granted discretion to strike a 10-year firearm enhancement (Pen. Code § 12022.53(h)) and a 5-year prior serious-felony enhancement (amendments to § 667/§ 1385), and argued the court erred by imposing mandatory fines/assessments without an ability-to-pay hearing (relying on People v. Dueñas).
- Court reversed and remanded for resentencing: to consider striking the 12022.53 and § 667(a) enhancements, to stay one of the duplicate punishments under § 654, and to correct the abstract of judgment; Dueñas-style remand for ability-to-pay was denied on the record here.
Issues
| Issue | People’s Argument | Yanez’s Argument | Held |
|---|---|---|---|
| Prosecutorial misconduct in closing (argument that robbers don’t go to work) and counsel’s failure to object | Remarks were fair comment/common-sense inference from timing evidence; not misconduct | Remarks were improper personal-knowledge comment and prejudicial; counsel ineffective for not objecting | Forfeiture of misconduct claim; appellate record does not show counsel lacked tactical reason or that prejudice under Strickland existed — ineffective-assistance claim rejected |
| CALCRIM No. 315 (witness certainty) — due process challenge | Instruction is standard and permits jurors to weigh certainty among other factors | Instruction ratifies the misperception that certainty equals accuracy and is unreliable under scientific research | Rejected under People v. Lemcke: instruction, in context and with expert testimony allowed, did not render trial fundamentally unfair |
| Double punishment under § 654 for assault occurring during robbery | Separate objective existed to assault the victim (People relied on court’s sentencing determination) | Assault was part of the single objective (robbery); punishment must be stayed | Court found no substantial evidence of a separate objective; § 654 requires staying one of the punishments |
| Retroactive discretion to strike enhancements (§ 12022.53 and prior serious-felony § 667(a)) | People conceded defendant is entitled to remand for the trial court to consider newly granted discretion | Estrada retroactivity and amendments to § 1385/§ 12022.53 entitle defendant to have court consider striking those enhancements | Remand ordered to permit trial court to exercise discretion under § 12022.53(h) and amended § 1385 to strike enhancements if appropriate |
| Ability-to-pay hearing for restitution fine and mandatory assessments (Dueñas) | Forfeiture excused because Dueñas was unforeseeable; but on facts here record doesn’t show inability to pay and future prison wages make ability-to-pay plausible — no remand required | Dueñas requires ability-to-pay hearing before imposing fees/fines; remand required to determine present inability to pay | Forfeiture excuse accepted; but on the facts court declined a Dueñas remand because record lacks evidence defendant cannot pay (prison wages etc.) |
| Abstract of judgment errors (firearm enhancements listed incorrectly) | People conceded clerical errors should be corrected after resentencing | Asked for correction | Court ordered amended abstract after resentencing |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (1984) (two-prong ineffective-assistance test)
- Harrington v. Richter, 562 U.S. 86 (2011) (prejudice standard discussion under Strickland)
- In re Estrada, 63 Cal.2d 740 (1965) (ameliorative criminal-law changes presumed retroactive absent contrary intent)
- People v. Lemcke, 11 Cal.5th 644 (2021) (CALCRIM 315 witness-certainty language did not render trial fundamentally unfair)
- People v. Sandoval, 62 Cal.4th 394 (2015) (prosecutor afforded wide latitude in argument; may rely on reasonable inferences)
- People v. Buycks, 5 Cal.5th 857 (2018) (application of Estrada to penalty-enhancement statutes)
- People v. Corpening, 2 Cal.5th 307 (2016) (framework for § 654 single act vs. course-of-conduct analysis)
- People v. Redd, 48 Cal.4th 691 (2010) (preservation rule for prosecutorial-misconduct claims)
- People v. Coddington, 23 Cal.4th 529 (2000) (failure to make meritless objections does not establish incompetence)
- People v. Mai, 57 Cal.4th 986 (2013) (limitations of raising ineffective-assistance claims on direct appeal)