Filed 11/25/20 P. v. Vargas CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

ERNESTO VARGAS,

Defendant and Appellant.

 D077605

 (Super. Ct. No. SCD175175)

APPEAL from a judgment of the Superior Court of San Diego County, 

Eugenia A. Eyherabide, Judge. Affirmed.

Stephen M. Hinkle, under appointment by the Court of Appeal, for 

Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant 

Attorney General, Julie L. Garland, Assistant Attorney General, Steve 

Oetting and Warren J. Williams, Deputy Attorneys General, for Plaintiff and 

Respondent.
2

We affirm the trial court’s denial of a petition to resentence defendant 

Ernesto Vargas on firearm enhancements because his conviction was final 

long before changes to the law that made sentencing on firearms 

discretionary instead of mandatory.

FACTUAL BACKGROUND1

On the night of June 4, 2003, Refugio R. was working as the closing 

manager at a restaurant in Old Town, in San Diego. He closed the 

restaurant at about 9:00 p.m. and let the last employee out at about 11:00 

p.m. As he was working in his office, Refugio heard something hit the wall. 

He began walking through the restaurant, calling out whether anyone was 

there. 

In the kitchen area, Refugio came upon defendant. He was standing 

about 12 feet away and was holding a shotgun. Refugio ran away, but 

slipped on a doormat, hit his knee on a wall and fell to the floor. Defendant 

approached Refugio from behind and pointed the shotgun at him. He said,

“stop motherfucker. I’m gonna kill you.” At the time he said this, defendant 

had his hand on the trigger of the shotgun and was standing three or four 

feet away from Refugio. He was wearing light tan gloves and a homemade 

black face mask. 

Refugio replied, “Take it easy. Don’t do anything crazy. I’ll give you 

anything you want. Don’t do anything crazy.” Defendant then dropped a 

backpack he was carrying and ordered Refugio to get on his knees, go to the 

office and get him money. Refugio got on his knees and crawled to the office. 

Defendant ordered Refugio to take everything from his pockets and put it on 

1 The facts are taken from the unpublished opinion in defendant’s appeal 

in this case. (People v. Vargas (Sept. 28, 2004; D043309) [nonpub. opn.].)
3

the floor. Defendant again warned him, “don’t do anything or I’m gonna kill 

you, you motherfucker.”

When Refugio reached the office door, defendant poked him hard on the 

back with the barrel of the shotgun and told him, “Hurry up you 

motherfucker. I need my money. I don’t have time.” Refugio stated, “You 

know what? Don’t do anything crazy. I’ll give you the money. Take it easy.” 

Defendant replied, “Well hurry up, motherfucker, or you’re gonna fucking 

die.”

With defendant still immediately behind him, Refugio crawled across 

the office floor to the safe. Defendant kept the gun pressed on Refugio’s

shoulder. He continued to threaten to kill him. 

Defendant took his left hand off the shotgun and started throwing and 

destroying phones and a fax machine in the office. In doing this, defendant 

moved to the front of Refugio and moved the barrel of the shotgun to 

Refugio’s chest just above his heart. When defendant reached out to destroy 

one of the phones, Refugio grabbed the barrel of the shotgun, which 

immediately fired. The shot missed Refugio and hit a pile of garments.

The two men struggled to control the shotgun. Refugio finally pinned 

defendant against the wall and hit him three times in the face and head. 

Defendant was knocked out. Refugio grabbed the shotgun.

The police arrived about five minutes later. When they sat defendant 

up, he spun around. The officers wrestled defendant to the floor and 

handcuffed him.

PROCEDURAL BACKGROUND

A jury found defendant guilty of attempted robbery (Pen. Code,2

2 Further statutory references are to the Penal Code.
4

§§ 664/211); assault with a firearm (§ 245, subd. (a)(2)); making a criminal 

threat (§ 422); burglary (§ 459); and false imprisonment by violence (§§ 236 & 

237, subd. (a)). It found true that defendant personally used a firearm (§ 

12022.53, subd. (b)) and personally discharged a firearm (§ 12022.53, subd. 

(c)) in the commission of the attempted robbery, and that he personally used 

a firearm (§ 12022.5, subd. (a)(1)) with respect to the other counts. In 

addition, defendant pleaded guilty to being a felon in possession of 

ammunition (§ 12316, subd. (b)(1)); and with being a felon in possession of a 

firearm (§ 12021, subd. (a)(1)). He admitted the allegations that he

committed the crimes while out on bail (§ 12022.1, subd. (b)); and that he had 

a prior robbery conviction that was both a prior serious felony (§ 667, subd.

(a)(1)), and a “strike” prior (§§ 667, subds. (b)-(i), 1170.12).

The court sentenced defendant to a prison term of 32 years 4 months, 

on November 12, 2003. We affirmed the conviction on September 28, 2004.

(People v. Vargas, supra, D043309.)

In February of 2020, defendant filed a petition requesting resentencing 

in light of Senate Bill No. 620, which ended the statutory prohibition on a 

trial court’s ability to strike a firearm enhancement. The petition was denied 

by the trial court on February 24, 2020.

Defendant signed and mailed a notice of appeal on March 16, 2020. It 

was not filed until May 26, 2020, due to the emergency shutdown of the 

courts. The court granted a certificate of probable cause on June 11, 2020.

ANALYSIS

The People contend defendant’s appeal should be dismissed because the 

notice of appeal is untimely, and he is not appealing from an order affecting 

his substantial rights. We conclude that regardless of these issues, 
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defendant’s appeal fails on the merits because Senate Bill No. 620 is not 

retroactive and does not violate principles of equal protection.

Senate Bill No. 620 became effective January 1, 2018, nearly 16 years 

after defendant’s case became final. The statutory changes made by Senate 

Bill No. 620 do not apply to cases where the judgment of conviction was final 

before the effective date. (People v. Hernandez (2019) 34 Cal.App.5th 323, 

326; People v. Johnson (2019) 32 Cal.App.5th 938, 942.) Defendant 

recognizes this but urges he should obtain relief under principles of equal 

protection. We agree with the court in People v. Hernandez, which concluded

there is no violation of equal protection (id. at pp. 326–327).

DISPOSITION

The judgment is affirmed.

BENKE, J.

WE CONCUR:

McCONNELL, P. J.

IRION, J.