Filed 11/4/21 P. v. Rubio CA2/8

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE,

Plaintiff and Respondent,

v.

JOSE HIPOLITO RUBIO,

Defendant and Appellant.

 B301744

 (Los Angeles County

 Super. Ct. No. LA085006)

APPEAL from a judgment of the Superior Court of Los 

Angeles County. Alan K. Schneider, Judge. Affirmed. 

Tanya Dellaca, under appointment by the Court of Appeal, 

for Defendant and Appellant.

Matthew Rodriguez, Acting Attorney General, Lance E. 

Winters, Chief Assistant Attorney General, Susan Sullivan 

Pithey, Senior Assistant Attorney General, Scott A. Taryle and 

David A. Voet, Deputy Attorneys General, for Plaintiff and 

Respondent.

__________________________
2

Appellant Jose Hipolito Rubio was convicted of two first 

degree murders with special circumstances. The trial court 

sentenced appellant to two consecutive terms of life without the 

possibility of parole and further imposed two 25-years-to-life 

enhancements for the use of a firearm causing death. At the time 

of sentencing, appellant’s counsel neither alerted the trial court 

of its discretion to strike or dismiss the gun enhancements nor 

requested the imposition of lesser ones the jury had found true.

1

Appellant contends this was ineffective assistance of counsel. 

We disagree and accordingly affirm the judgment. 

Pertinent Procedural History

On August 21, 2019,2 the jury returned verdicts convicting

appellant of the first degree murders of Cassandra Anguiano 

(Anguiano) and Victor Caceres (Caceres). (Counts 1 & 2.) As to 

each of the two murder counts, the jury found true that appellant 

had personally used a firearm within the meaning of Penal Code 

section 12022.53, subdivisions (b), (c) and (d).3 Subdivision (d) of 

section 12022.53, which was the enhancement eventually used in 

the imposition of appellant’s sentence, provides for a term of 25 

years to life for a person who intentionally discharges a firearm 

causing great bodily injury or death. The jury also found true the 

1 The People’s sentencing memorandum argued that the trial 

court lacked discretion to dismiss or strike the gun enhancement 

which, based on the passage of Senate Bill No. 620, was 

erroneous.

2 In light of an error in the record that we discuss below, the 

date the verdict was returned is important.

3 Statutory references are to the Penal Code.
3

special circumstance under section 190.2, subdivision (a)(3) that 

appellant had been convicted of more than one murder in the first 

degree. In addition, the jury found appellant guilty of being a 

felon in possession of a firearm (count 3, § 29800, subd. (a)(1)) 

and of cruelty to an animal (count 4, § 597, subd. (a)).

The People’s sentencing memorandum was filed on 

September 9, 2019. In pertinent part, the People’s sentencing 

memorandum stated that “the court must sentence [appellant] to 

25 years to Life consecutive for each Penal Code Section 

12022.53(d) allegation that was found true” and that appellant 

“cannot be sentenced to a lesser term than PC 12022.53(d)’s 25 to 

Life.” (Underscoring omitted.)

The sentencing proceedings took place on September 12, 

2019.4 Proceedings commenced with the victim’s impact 

statement by Norma Ceballos (Ceballos), Anguiano’s mother, who 

was followed by a family member speaking for Caceres. There 

were two more speakers for the Ceballos family, including a 

brother of Anguiano.

Following these statements, the court gave appellant an 

opportunity to address the court. Appellant declined. At that 

time, a brief exchange took place between the court and 

appellant.

5 After an outburst from the audience, the short 

4 The reporter’s transcript erroneously states that the 

sentencing hearing took place on August 12, 2019. That of course 

was impossible since the verdict was returned on August 21, 

2019. The clerk’s transcript shows the sentencing date to be 

September 12, 2019.

5 “The Court: Mr. Rubio, you smirk now and I know that a 

lot of that is simply because you’re afraid. You feel foolish. This 

was so senseless. It was just senseless, and it’s tragic. You 
4

conversation between appellant and the trial court ended with 

the court’s observation that appellant would be living the rest of 

his life in a jail cell, which the court noted was unfortunate.

The defense did not file a sentencing memorandum and did 

not present an argument on sentencing.

After ascertaining that arraignment for judgment and 

sentencing was waived and there was no legal cause why the 

sentence could not be imposed, the trial court sentenced 

appellant to two consecutive terms of life without the possibility 

of parole on the murder counts. The court then imposed two 

consecutive terms of 25 years to life under subdivision (d) of 

section 12022.53 on the murder counts.6

The court additionally sentenced appellant to the midterm

of two years on count 3 to be served concurrently with the sixyear sentence on count 4, which is composed of a midterm of two 

years with an enhancement of four years under subdivision (a) of 

section 12022.5 [use of firearm].7

ruined your family. You ruined your life and you ruined both 

victim families’ lives and of course ended their life over nothing, 

and I also know that you are a very immature person, and that’s 

in your own polluted head right now. You’re still smirking. [¶] 

The Defendant: That was the whole reason for this, to get over it, 

you know.”

6 The court struck the findings under subdivisions (b) and (c) 

of section 12022.53. Respectively, these subdivisions impose 

terms of 10 and 20 years.

7 A prior strike conviction, a prior conviction for a serious 

felony and the allegation that appellant had served three prior 

prison terms were dismissed on the People’s motion.
5

Other aspects of the sentence, such as the restitution fine of 

$2,000, are not material to the appeal.

Statement of Facts

This appeal is limited to the imposition of the two 25-yearsto-life enhancements under section 12022.5, subdivision (d).

In light of the limited nature of the appeal, we provide an

abbreviated summary of the facts. Nonetheless, the manner in 

which the murders were committed is relevant in assessing his 

ineffective assistance of counsel claim. 

1. Prelude

According to Ceballos (Anguiano’s mother), appellant and 

Anguiano were in a relationship when Anguiano brought 

appellant to Ceballos’s home on September 22 or 23, 2016. The 

occasion was Ceballos’s birthday, although their connection 

appeared romantic in nature. Anguiano wanted to take care of 

appellant who she said did not have a mother. Appellant appears 

to have spent some time in the Ceballos’s home although, 

according to Ceballos, he never said much.

The relationship did not last. By October 16, 2016, 

Ceballos noted that the interaction between appellant and 

Anguiano had changed for the worse, with neither comfortable 

nor happy. By October 21, 2016, appellant was sending vaguely 

hostile e-mails to Anguiano about picking up her belongings.

In what turned out to be a fateful development, on October 

23, 2019, Anguiano brought Caceres to the Ceballos house. 

Ceballos believed that Caceres was courting Anguiano, calling 

her a princess. In turn, Anguiano appeared “interested” in 

Caceres.

Tragedy struck the next day, on October 24, 2019.
6

2. The Murders

On the morning of October 24, 2016, Ceballos went to work, 

leaving Anguiano and Cruz Campos (Campos), a woman to whom

Ceballos rented a room at her home. Later that morning, 

Anguiano called and asked to borrow Ceballos’s car. A little bit 

later, around 10:45 a.m. or 10:50 a.m., Campos’ son called 

Ceballos talking fast and very agitated and told her: “Run to 

your house. They’re shooting at your daughter.” 

According to Campos,8 at around 10:30 a.m., she went 

outside to take out the trash, spoke to Anguiano on the way and 

then returned to her bedroom. Around 11:00 a.m., Campos heard 

two gun shots. She threw herself on the floor. She heard 

Anguiano scream repeatedly: “No, please no” and “Don’t kill 

me.”9 Campos heard four or five more gunshots while she was on 

the floor. 

At 11:00 a.m., Jennifer S. was sitting in her backyard, 

when she heard “a bunch of noise” which sounded like trash 

trucks. But she could not make out what the noise was. About 

five minutes later, Ceballos called, sounded panicked, scared, and 

screaming that someone was shooting her baby. She asked 

Jennifer to see what was happening. Jennifer ran across the 

street and, when she reached the driveway, saw a man, later 

identified as Caceres, lying face down in the carport with a 

gunshot wound to his head and blood coming from his ears. 

8 After the court found Campos unavailable, her preliminary 

hearing testimony was read into the record. 

9 Referring to Anguiano’s outcries, Campos’s formulation was 

“Many times she repeated it.”
7

When police arrived later, the police noted multiple gunshot 

wounds to the chest area and a couple wounds to the head.

Ceballos arrived within five minutes, told Jennifer that 

Anguiano was there somewhere and then went to look for her. 

They went toward the backyard, through the already open back 

gate, and found Anguiano with blood on her face near the kitchen 

door of a converted garage. 

When police arrived, Anguiano’s body was in a seated 

position leaning slightly slouched against a wall, with gunshot 

wounds to her neck and jaw, and spent .9 millimeter bullet 

casings and a cell phone nearby. Officer Fred Sigman noticed 

blood droplets around Anguiano’s body and a blood trail into the 

side of the yard, where he found Ceballos’s dog, Fleshy, cowering 

and bleeding from its neck. The dog had been shot in the head. 

The parties stipulated that Caceres’ cause of death was five 

gunshot wounds, that Anguiano’s cause of death was two gunshot 

wounds and that the manner of death in both cases was 

homicide. 

3. Evidence of Appellant’s Guilt

The appeal does not contest that it was appellant who 

committed the murders. A judgment is presumed to be correct 

and error must be affirmatively shown. (Denham v. Superior 

Court (1970) 2 Cal.3d 557, 564;10 see generally 9 Witkin, Cal. 

Procedure (5th ed. 2008) Appeal, § 355, pp. 409–410.) There is no 

need to review the evidence that the jury relied on to convict 

appellant of the charges of which he was found guilty.

10 “ ‘This is not only a general principle of appellate practice 

but an ingredient of the constitutional doctrine of reversible 

error.’ ” (Denham v. Superior Court, supra, 2 Cal.3d at p. 564.)
8

Nonetheless, since we affirm a judgment imposing the most 

serious sentence short of capital punishment, we briefly note the 

evidence that showed that appellant was guilty of the murders. 

The appellant lived with his father on 11255 El Dorado 

Avenue about 12 miles from Ceballos’s home on Oso Avenue. 

It takes between 15 and 18 minutes to cover the distance by car. 

A surveillance video acquired by detective Mathew Kohl from a 

house on El Dorado Avenue across the street from 11255 El 

Dorado Avenue shows the exit of a vehicle driven by a male from 

the house on El Dorado Street about 15 or 20 minutes prior to the 

murders and the return of that vehicle after the murders.

Appellant was dropped off at the Mexican border by some 

friends in the early hours of October 25, 2016. He was arrested 

on November 7, 2016 as he was trying to re-enter the United 

States from Mexico. He was placed in a jail cell with a 

confidential informant who wore a hidden microphone which 

allowed a conversation between the informant and appellant to 

be recorded. 

In the course of the conversation with the informant, 

appellant said that “some girl died and some fool died” and that 

“they” [the police] said that “ ‘some fool from Pacoima did it.’ ”

Appellant added: “I was, like, what’s your problem, fool? I’m, 

that fool from Pacoima.” The informant asked “Oh, for real?” and 

appellant replied “Yeah, but I didn’t do it though.”

A little later the following exchange took place:

“[Appellant]: You caught her cheating with somebody else 

or what?

Confidential Informant: Huh?

[Appellant]: You caught her cheating with somebody else 

or what?
9

Confidential Informant: Something like that.

[Appellant]: Something like that? It’s something like that.

Confidential Informant: Yeah?

[Appellant]: But I did both of them. [laughs]

Confidential Informant: Oh, for real?

[Appellant]: No, I’m just kidding. Whoo. The f--- do you 

guys have us in here. We’re f---ing innocent until proven 

guilty.” 

In the course of the conversation with the informant, 

appellant revealed his potential motive for the murders. He 

spoke of Anguiano as the only girl who ever introduced him to her 

family. He was clearly moved by this.11 This may have 

embittered him when he found out about Caceres. When he 

called Anguiano he heard someone in the background. He told 

her “you’re gonna do me, and, like, you’re with some f--ing fool, 

right now, and that she talking to me and I hear him on the 

phone- bullshit, won’t call me back, and I just call her back and 

she answered me. Except she hung up . . . Like- like you’re doing 

me like this, like, with another fool? And she was- she didn’t 

even care like, and, like, so what?” The informant said “Yeah” 

and appellant replied: “She’s dead. [laughs].”

DISCUSSION

The Ineffective Assistance of Counsel Claim

Appellant’s sole contention on appeal is that his trial 

counsel was ineffective for failing to advise the court that the 

11 “Her, she introduces me to her moms, oh, mom, this is- this 

is Jose, this is my mom, this is my sister, and everybody would 

have been, oh, my God, he’s so cute. Like, damn, you came up, 

you know? Like, damn, you found yourself a good one, you 

know?”
10

People’s sentencing memorandum was wrong in stating that the 

court was required to sentence appellant to a term of 25 years to 

life under section 12022.53, subdivision (d). Appellant further 

claims his counsel was ineffective for failing to ask the court to 

exercise its discretion to strike or dismiss these enhancements or

to impose lesser ones.

Respondent concedes that the sentencing memorandum 

was wrong in stating that the court was required to impose the 

25-years-to-life enhancement under section 12022.53, subdivision

(d). However, respondent contends that there was no reason the 

court would have stricken or reduced these two enhancements in 

that these were “brutal special circumstance murders.”

To obtain relief based on a claim of ineffective assistance of 

counsel, appellant must establish (1) that counsel’s performance 

was so deficient that it amounted to a failure to function as 

“counsel” guaranteed by the Sixth Amendment and (2) that the 

deficiency prejudiced the outcome. (See Strickland v. Washington

(1984) 466 U.S. 668, 687 (Strickland); see, e.g., People v. 

Pensinger (1991) 52 Cal.3d 1210, 1252.) An attorney’s 

performance is deficient under Strickland when the complained 

of conduct falls below objective standards of reasonableness 

under prevailing professional norms. (Strickland, supra, 466 

U.S. at p. 688.) Prejudice under Strickland is established where 

there is a reasonable probability that, absent counsel’s errors, the 

outcome of the proceeding would have been different. (Id. at 

p. 694.) A reasonable probability is a probability sufficient to 

undermine confidence in the outcome. (Ibid.)

Senate Bill No. 620 (2017–2018 Reg. Sess.) amended 

sections 12022.5 and 12022.53 to provide trial courts with 

discretion to strike or dismiss a firearm enhancement or finding 
11

beginning January 1, 2018. (Stats 2017, ch. 682.) Senate Bill 

No. 620 added the following language to both statutes: “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.” (§§ 12022.53, 

subd. (h), 12022.5, subd. (c).) Beginning a few months after the 

effective date of this legislation, the reviewing courts have 

enforced and publicized these changes in the law. (See, e.g., 

People v. McDaniels (2018) 22 Cal.App.5th 420, 423

(McDaniels).)12 These changes were, or should have been, 

common knowledge at the time of appellant’s sentencing hearing 

on September 12, 2019. 

On the first Strickland prong for deficient performance, 

appellant contends, “[d]espite the availability and applicability of 

Senate Bill [No.] 620, . . . counsel inexplicably made no request to 

strike the firearm enhancements or to impose the lesser firearm 

enhancement as to some or all of the counts.” He also complains 

counsel failed to correct the prosecutor’s error that the imposition 

of the 25-years-to-life term for the gun enhancement was 

mandatory. The respondent counters that “a competent defense 

attorney may have chosen not to point out this error for a very 

sound reason: there was no basis . . . to ask the trial court to 

grant such leniency in this case.”

Underlying appellant’s argument is the notion, based on 

the prosecutor’s sentencing memorandum, the trial court was 

unaware of its discretion under Senate Bill No. 620. However, 

the sentencing here took place nearly two years after Senate Bill 

No. 620 took effect. When the trial court imposed the 

12 The opinion and decision in McDaniels was filed on 

April 17, 2018.
12

enhancements at sentencing, it neither agreed nor disagreed with 

the prosecutor’s position in the sentencing memorandum. 

Indeed,“[a]bsent evidence to the contrary, we presume that the 

trial court knew the law and followed it. [Citations.]” (People v. 

Ramirez (2021) 10 Cal.5th 983, 1042.) 

Furthermore, the law is clear—defense counsel “is not 

ineffective for failing to make . . . futile motions.” (People v. 

Thompson (2010) 49 Cal.4th 79, 122.) Appellant’s crimes of 

murdering two innocent victims by shooting each multiple times 

at close range over a short romantic relationship gone bad was 

extremely cruel, callous, and viscous. Under these 

circumstances, not asking the court to either exercise its 

discretion to strike the imposition of the gun enhancements or to 

ask for a lesser enhancement was not deficient performance.

On the other hand, counsel’s failure to correct the prosecutor’s 

mistake in the sentencing memorandum was deficient 

performance. 

Despite this, appellant falls short on prong two—prejudice.

As noted above, establishing prejudice requires a showing of a 

reasonable probability that absent counsel’s deficient 

performance, the outcome would have been different. 

Appellant argues the current societal trend is to move away 

from imposing lengthy sentences. He also notes the Los Angeles 

District Attorney’s new directive (Special Directive 20-14) 

specifies that on remand for resentencing, deputies are required 

to inform the trial court to strike all sentencing enhancements in 

the interest of justice. These may well be. However, the precise 

question before us is whether there is a reasonable probability of 

a different outcome. For this we ask, absent the deficient 

performance, whether the trial court would have exercised its 
13

discretion differently—not whether the deputy district attorney 

would ask the trial court to dismiss the enhancement based on 

the new directive. The shift in society away from lengthy prison 

terms and the District Attorney’s directive on remand for 

resentencing are not on point in the Strickland prejudice 

analysis.

Appellant also points to his colloquy with the trial court as 

the basis of establishing prejudice. During the sentencing 

hearing, appellant was apparently smirking. The trial court 

noted the appellant’s demeanor and spoke to appellant in open 

court, as noted in footnote 4 of this opinion.

After a comment by appellant that seemed to explain he 

committed the crimes to get over the break-up, the trial court 

stated, “So I hope at some point, as you heard here today, that 

you do wake up and you have a soul, regain humanity, but 

whether or not you do is going to be up to you. You will have a 

long, long time to think about it.” To this, appellant retorted, 

“I have a long life to live.” The trial court replied, “That’s fine, 

but you will be living it in a jail cell and that is unfortunate.” 

Appellant claims the statement by the trial court reflects a 

view that the trial court believed the sentence of 54 years to life, 

consecutive to the two life without the possibility of parole terms, 

was not necessary. We do not interpret the trial court’s 

statement the same way.

The colloquy happened after the victims’ family members 

gave their impact statements. The trial court clearly believed 

appellant’s attitude and demeanor were inappropriate in the face 

of what was taking place. While the trial court’s comments were 

not overly harsh in tone, the intended purpose of the statement 

was not to comment on the appropriateness of the prison term to 
14

be imposed. Rather, the trial court made the comment to stop the 

appellant’s inappropriate demeanor in the face of his convictions 

and the damage he caused to many people.

Again we point back at the evidence adduced at trial. 

This was a horrendous crime where, at least one of the victims 

(Anguiano) begged for her life. Instead of heeding the plea for life 

and exercising restraint and compassion, he shot and killed 

Anguiano. Not only so, appellant also shot the family dog. 

Appellant has failed to cite any mitigating evidence that the trial 

court could have used to grant lenity. Appellant has failed to 

show a reasonable probability of a different outcome.

DISPOSITION

The judgment is affirmed.

OHTA, J. *

We Concur:

STRATTON, Acting P. J. 

WILEY, J.

* Judge of the Los Angeles Superior Court, assigned by the 

Chief Justice pursuant to article VI, section 6 of the California 

Constitution.