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Filed 2/7/22 P. v. Esquivel CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or 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 THREE

THE PEOPLE OF THE STATE OF 

CALIFORNIA,

Plaintiff and Respondent,

v.

ANTONIO DEJESUS ESQUIVEL,

Defendant and Appellant.

 A162105

 (Contra Costa County

 Super. Ct. No. 51200237)

Appellant Antonio DeJesus Esquivel appeals the trial court’s order 

denying his request to strike or reduce the 25-year-term firearm 

enhancement imposed on him under Penal Code section 12022.53,

subdivision (d) (section 12022.53(d)).

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 He argues his case should be 

remanded because the trial court did not understand the scope of its 

discretionary sentencing powers under section 12022.53, subdivision (h) 

(section 12022.53(h)) when it declined to strike the firearm enhancement 

based on the erroneous belief it lacked authority to impose a lesser included 

enhancement in its place. In light of our Supreme Court’s recent decision in 

People v. Tirado (Jan. 20, 2022, S257658) ___ Cal.5th ___ [2022 WL 176411] 

(Tirado II), which concluded that a court could strike a greater firearm 

1 All statutory references are to the Penal Code unless otherwise stated.
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enhancement under section 12022.53(d) and impose a lesser uncharged 

enhancement instead, we reverse and remand for resentencing.

FACTUAL AND PROCEDURAL BACKGROUND

We detailed the factual and procedural background of this case in our 

earlier nonpublished decision affirming Esquivel’s convictions. (See People v. 

Esquivel (June 25, 2019, A149692) [nonpub. opn.].) We do not repeat those 

details here and instead focus on the facts pertinent to this appeal. 

In 2011, then 21-year-old Esquivel shot B.H. twice on a public 

sidewalk. He and his companion then punched and kicked B.H. as he lay on 

the ground. Following a trial in 2016, the jury convicted Esquivel of first 

degree murder (§ 187) with true findings on an alleged gang enhancement (§ 

186.22, subd. (b)(1)) and a firearm enhancement (§ 12022.53, subds. (d), 

(e)(1)); unlawfully carrying a loaded firearm within an incorporated city (§ 

12031, subd. (a)(1)); and active participation in a criminal street gang (§ 

186.22, subd. (a)). The trial court sentenced Esquivel to an aggregate term of 

50 years to life in state prison, which included the mandatory 25-year term

for the section 12022.53(d) firearm enhancement. Esquivel appealed.

In June 2019, this court affirmed the judgment of conviction but 

remanded the case for resentencing to allow the trial court to consider its new 

discretion to strike the firearm enhancement under Senate Bill No. 620 

(2017-2018 Reg. Sess.) (Stats. 2017, ch. 682 §§ 1-2), which amended section 

12022.53(h) to grant courts discretion to strike or dismiss a firearm 

enhancement imposed under section 12022.53 in the interest of justice 

pursuant to section 1385. In our disposition, we “remanded to the trial court 

for resentencing limited to determining whether the firearm enhancement 

should be stricken or dismissed” under section 12022.53(h), and stated that if 
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the enhancement is not stricken or dismissed, “then the sentence on that 

enhancement shall be reinstated as originally imposed.”

Before the resentencing hearing on remand, Esquivel filed sentencing 

memoranda apprising the court of his postconviction conduct while 

incarcerated. While in prison, he had availed himself of various job 

opportunities, working as a porter, housing clerk, and literacy tutor. He was 

pursuing a college degree and was one of twelve incarcerated students in the 

state to have received a scholarship to support his further education. He 

completed an “Alternatives to Violence” course. To date, he had received no 

write-ups for violent behavior, only one for having a cell phone. Esquivel 

reflected that he was 21 years old when he committed his crime and was now 

30 years old with four years of prison served during which time he had made 

substantial progress in his emotional and mental development. He asked the 

court to exercise its discretion to strike the 25-year-term firearm 

enhancement. 

In addition, on November 13, 2020, Esquivel filed a separate 

memorandum of points and authorities asserting that if the court was not 

inclined to strike his 25-year-term firearm enhancement outright, under 

People v. Morrison (2019) 34 Cal.App.5th 217 (Morrison) it had discretion to 

impose a lesser enhancement under sections 12022.53, subdivision (b) or (c), 

as a “middle ground” to the lifetime enhancement under subdivision (d).

In its written opposition, the prosecution commended Esquivel’s efforts 

to better himself and the absence of any write-ups for acts of gang violence 

while incarcerated but contended those steps were not enough to overcome 

his murder of B.H. or subsequent gang-related conduct while pending trial.

At the February 19, 2021 resentencing hearing, Esquivel’s counsel

explained that its November 13, 2020 memorandum of points and authorities
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no longer reflected the state of the law with respect to a court’s ability to 

impose a lesser firearm enhancement instead of striking the enhancement 

outright. Defense counsel noted that People v. Delavega (2021) 59 

Cal.App.5th 1074 (Delavega), had recently held that the court could not 

impose a lesser firearm enhancement unless one of those lesser 

enhancements had been pled and found true by the jury. The court noted 

another case, People v. Garcia (2020) 46 Cal.App.5th 786 (Garcia), reached 

the same conclusion as Delavega. Defense counsel anticipated that the 

California Supreme Court would likely resolve the split in authority between 

Morrison and Delavega/Garcia. 

Defense counsel then turned to Esquivel’s growth in the four years 

since his sentence. He was studious and dedicated to getting a college 

degree. The scholarship spoke volumes about his dedication and commitment 

to becoming a better person than what the court saw in 2016. He had 

exhibited the type of reformation the court would appreciate. Given the 

choices before the court, defense counsel asked the 25-year-term firearm 

enhancement be stricken outright.

The prosecutor stated she was impressed with the steps Esquivel had 

taken and noted he was “really making amazing strides.” However, his crime 

was horrific—firing several rounds at an unarmed and unsuspecting victim 

in the middle of a neighborhood for the purposes of benefiting a gang’s 

reputation in general and his own personal standing. As he awaited trial, he 

also showed heinous behavior—outright attacks on unsuspecting people and 

threats to potential witnesses for the prosecution. In the prosecution’s view, 

Esquivel’s “[a]ctions in the past simply [did] not warrant a reduction or a 

dismissal of an enhancement at this time.”
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The court also heard from Esquivel who stated as follows: He had been 

wrong and was “truly sorry to everybody involved.” He had realized that 

prison was not the place he wanted to be, so he made a choice to not lose 

hope. Instead, he chose to better himself. He aspired to go to college, do as 

many programs as possible, and stay out of trouble. He explained the “lowerlevel prison” he would soon go to would help him further himself through 

college, as well as deepen his own understanding of victim and gang 

awareness. While not diminishing what he had done in the past, he was 

doing everything he could to better himself.

After commending Esquivel on his efforts “to do something with his 

life” while in prison, the court recounted the “very serious and stark” facts of 

his case. The evidence showed Esquivel, along with another gang member, 

had gone looking for B.H., who was not posing any danger to Esquivel at the 

time, and shot him dead on the street. Balancing Esquivel’s “laudable”

efforts in prison against the stark facts of his crime—and faced with “a binary 

choice between striking the 25-year enhancement or not”—the court declined 

to strike it. The court added: “I can say this, and this may be some source of

hope for you, Mr. Esquivel, that if I had a choice in the future of accepting a 

lesser-included firearm enhancement in the future and balancing that 

against what you've done while you have been in [California Department of 

Corrections and Rehabilitation], I might very well decide that in your favor.” 

The court stated that if the Supreme Court allowed the reduction of the 

firearm enhancement to some lesser enhancement rather than the “25 or 

nothing alternative,” it “might very well consider a positive decision in 

[Esquivel’s] favor” if Esquivel continued his positive efforts while in custody. 

In the court’s view, such an approach would better balance the facts of the 

case and Esquivel’s efforts to improve himself while incarcerated. On this 
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basis, the court denied Esquivel’s request to strike his firearm enhancement

or substitute a lesser enhancement. Esquivel now appeals the court’s order.

DISCUSSION

Esquivel contends the trial court did not fully and correctly understand 

the scope of its discretionary sentencing powers and erroneously concluded it 

lacked authority to strike his firearm enhancements and impose a lesser 

firearm enhancement. He says we should reverse the trial court’s order and 

remand his case so the trial court can reconsider whether to strike the 

firearm enhancement and impose a lesser included firearm enhancement. 

Based on recently published Supreme Court authority, we agree. 

Section 12022.53 provides three different escalating sentence 

enhancements for the personal use of a firearm in the commission of specified 

felonies, including murder. (See § 12022.53, subds. (b)-(d).) These consist of 

a 10-year enhancement for the personal use of a firearm under section 

12022.53, subdivision (b) (section 12022.53(b)) (id., subd. (b)); a 20-year 

enhancement for the personal and intentional discharge of a firearm under

section 12022.53, subdivision (c) (section 12022.53(c)) (id., § subd. (c)); and a 

25-year-to-life enhancement for the personal and intentional discharge of a 

firearm causing great bodily injury or death under section 12022.53(d) (id., § 

subd. (d).).

Effective January 1, 2018, the Legislature enacted Senate Bill No. 620, 

which amended section 12022.53(h), to state: “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.”

(People v. Hoang (2021) 66 Cal.App.5th 1020, 1022, fn. 3.) Former section 

12022.53(h), prohibited courts from striking or dismissing firearm 
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enhancements found true under section 12022.53, “ ‘ “[n]otwithstanding 

[s]ection 1385 or any other provision of law.” ’ ” (Id. at p. 1023.) 

A trial court’s refusal to dismiss a section 12022.53 firearm 

enhancement is reviewed under the deferential abuse of discretion standard. 

(People v. Pearson (2019) 38 Cal.App.5th 112, 116.)2 “When being sentenced, 

a defendant is entitled to decisions made by a court exercising informed 

discretion. [Citation.] A court acting while unaware of the scope of its 

discretion is understood to have abused it.” (Tirado II, supra, ___ Cal.5th at 

p. ___ [2022 WL 176411, at *2].)

To support his contention that his case should be remanded because 

the court failed to consider the lesser enhancement, Esquivel relies on 

Morrison, supra, 34 Cal.App.5th 217. There, Division Five of this court held 

that amended section 12022.53(h) not only gave a trial court the authority to 

strike or dismiss a firearm enhancement, but also to impose a lesser firearm 

enhancement in the exercise of a court’s discretion. (Id. at p. 222.) 

A number of other Courts of Appeal, however, rejected Morrison’s 

holding. In People v. Tirado (2019) 38 Cal.App.5th 637 (Tirado I), review 

granted November 13, 2019, S257658, the Fifth District Court of Appeal 

disagreed with the court in Morrison, noting that “[n]othing in the plain 

language of sections 1385 or 12022.53, subdivision (h) authorizes a trial court 

to substitute one enhancement for another.” (Tirado I, supra, at p. 643.) In

People v. Garcia (2020) 46 Cal.App.5th 786, review granted June 10, 2020, 

S261772—the case the court referred to at Esquivel’s resentencing hearing—

the court agreed with the Fifth District in Tirado I “that section 12022.53, 

2 The People contend this appeal presents issues of statutory 

interpretation which we review de novo. We need not resolve this 

disagreement because we conclude the court’s order must be reversed under 

any standard.
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subdivision (h) does not grant a trial court the discretion to substitute lesser 

included firearm enhancements, at least where the greater enhancement is 

legally and factually valid.” (Id. at pp. 790–791.) Later, Division One of this 

court decided Delavega, supra, 59 Cal.App.5th 1074—the case defense 

counsel referenced at the resentencing hearing—which also agreed with the 

Fifth District’s Tirado I line of cases and held that section 12022.53(h) did

not give the trial court power to strike a legally and factually supported 

enhancement found true and impose a lesser enhancement that was not 

found true. (Delavega, supra, at p. 1094.)

While this appeal was pending, the conflict between Morrison and the

contrary line of cases was resolved by our Supreme Court in Tirado II, supra, 

___ Cal.5th ___ [2022 WL 176411].

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 There, the Court concluded that

“Morrison correctly described the scope of a trial court’s sentencing discretion 

under section 12022.53.” (Tirado II, supra, ___ Cal.5th at p. ___ [2022 WL 

176411, at *4].) At the outset, the Court noted that a trial court is not 

categorically prohibited from imposing a lesser included, uncharged 

enhancement so long as the prosecution has charged the greater 

enhancement and the facts supporting the lesser enhancement have been 

alleged and found true. (Id. at p. ___ [2022 WL 176411, at *4] [citing a 

number of cases applying this principle including People v. Strickland (1974) 

11 Cal.3d 946 and People v. Fiahlo (2014) 229 Cal.App.4th 1389].) It found 

no authority which conditioned a trial court’s power to impose an uncharged 

enhancement on the charged and adjudicated enhancement being legally or 

factually inapplicable. (Id. at p. ___ [2022 WL 176411, at *4].) Nor did

3 Both parties indicated in their appellate briefs that the Supreme Court 

had granted review in Tirado I and Delavega. Further, Esquivel also 

anticipated that this conflict would be settled relatively soon given Tirado I 

was argued and submitted in early November 2021.
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section 12022.53 bar a trial court from imposing an enhancement under 

section 12022.53(b) or (c) when those enhancements were not specifically 

listed in the accusatory pleading but the facts giving rise to the enhancement 

were alleged and found true. (Id. at p. ___.) The court further noted that 

section 12022.53, subdivision (j) authorized the imposition of enhancements 

under section 12022.53 as long as “the existence of any fact required under 

subdivision (b), (c), or (d) [is] alleged in the accusatory pleading and . . .

admitted . . . or found to be true.” (Id. at p. ___ [2022 WL 176411, at *3]; § 

12022.53, subd. (j).) Thus, the Court concluded that under the section 

12022.53 statutory framework, courts are permitted to strike a section 

12022.53(d) enhancement found true by the jury and to impose a lesser 

uncharged statutory enhancement instead. (Id. at p. ___ [2022 WL 176411,

at *6] [“To summarize: When an accusatory pleading alleges and the jury 

finds true the facts supporting a section 12022.53(d) enhancement, and the 

court determines that the section 12022.53(d) enhancement should be struck 

or dismissed under section 12022.53(h), the court may, under section 

12022.53(j), impose an enhancement under section 12022.53(b) or (c).”].)

Here, the record shows that the trial court did not understand it could 

impose a lesser included enhancement in lieu of the charged section 

12022.53(d) firearm enhancement found true by the jury when it declined to 

strike Esquivel’s 25-year-term firearm enhancement. The record further 

shows that if the trial court understood that it had a choice to impose a lesser 

included firearm enhancement instead of the greater one imposed, it might 

do so. Tirado II has clarified that the section 12022.53 statutory framework 

permits a court to strike the section 12022.53(d) enhancement found true by 

a jury and to impose a lesser charged enhancement instead. In light of this 

new controlling authority, a remand to the trial court for resentencing is once 
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again warranted, so that the trial court may consider whether to strike the 

greater firearm enhancement and impose a lesser included enhancement in 

its place. We express no opinion as to how the court should exercise its 

discretion on remand.

We need not address the People’s arguments that the Tirado I line of 

cases, including Delavega, is more persuasive than Morrison, as the Supreme 

Court has resolved that conflict in favor of Morrison, as discussed.

DISPOSITION

The trial court’s order denying Esquivel’s motion for resentencing is 

reversed, and the case is remanded for resentencing. After such 

resentencing, the trial court is directed to issue a new minute order and an 

amended abstract of judgment to reflect whether it strikes or dismisses the 

existing firearm enhancement and imposes a lesser included enhancement in 

its place or reinstates the sentence on the firearm enhancement. The court 

shall forward a certified copy of the amended abstract of judgment to the 

California Department of Corrections and Rehabilitation.
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_________________________

Petrou, J.

WE CONCUR:

_________________________

Fujisaki, Acting P.J.

_________________________

Rodríguez, J.

People v. Esquivel/A162105