Opinion
D075701
04-09-2020
THE PEOPLE, Plaintiff and Respondent, v. JOHN BENAVIDES, Defendant and Appellant.
Marta I. Stanton, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland and Robin Urbanski, Assistant Attorneys General, and Brendon W. Marshall, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD272074 [Lead case of 2 cases]) APPEAL from a judgment of the Superior Court of San Diego County, Kenneth K. So, Judge. Affirmed. Marta I. Stanton, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland and Robin Urbanski, Assistant Attorneys General, and Brendon W. Marshall, Deputy Attorney General, for Plaintiff and Respondent.
After being charged with more than 20 crimes, defendant John Benavides pleaded guilty to five counts, admitted several enhancement allegations, and admitted he had suffered a serious felony prior and a strike prior. The trial court sentenced him to 28 years in prison and ordered him to pay assessments, fees, and fines exceeding $10,000.
"We use the term 'strike' to describe a prior felony conviction that qualifies a defendant for the increased punishment specified in the Three Strikes law." (People v. Fuhrman (1997) 16 Cal.4th 930, 932, fn. 2; see Pen. Code, §§ 667, 1170.12; all further undesignated statutory references are to the Penal Code.)
On appeal, Benavides contends the trial court erred by denying his motion to "strike" his strike prior in the interests of justice under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero) and section 1385. He also contends the trial court's imposition of certain of the assessments and fines without first determining his ability to pay them violated his due process rights as recently enunciated in People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). For reasons we will explain, we affirm the judgment.
Section 1385, subdivision (a) provides in part that a "judge or magistrate may, either of his or her own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed." "A Romero 'motion' is in fact a request that the court exercise its authority under section 1385 to strike a prior felony conviction." (People v. Lee (2008) 161 Cal.App.4th 124, 126, fn. 2, italics omitted.)
FACTUAL AND PROCEDURAL BACKGROUND
Beginning in 2014, a law enforcement task force targeting the Mexican Mafia identified Benavides and a codefendant "as key players." A high-ranking member of the Mexican Mafia on death row, Ronaldo Ayala, regularly called Benavides to discuss criminal activities such as narcotics dealing, tax enforcement, payment collection, and carrying out acts of violence.
Charges
Case No. SCS287783
In 2016, Benavides was charged with making criminal threats (§ 422) and conspiracy to commit battery (§ 182, subd. (a)(1)). Each count included a street gang enhancement allegation (§ 186.22, subd. (b)(1)), and it was further alleged Benavides had suffered two prison priors, one serious felony prior, and one strike prior.
Case No. SCD272074
In 2017, Benavides was charged in a 19-count amended information with a variety of drug, firearm, conspiracy, robbery, extortion, and kidnapping offenses. Each count included a gang enhancement allegation (§ 186.22, subd. (b)(1)); three drug-related counts included an armed-with-a-firearm enhancement allegation (§ 12022, subd. (c)); and six counts included an out-on-bail enhancement allegation (§ 12022.1, subd. (b)).
The amended information alleged one or more counts of each of the following offenses: conspiracy to distribute methamphetamine (§ 182, subd. (a)(1)); conspiracy to distribute heroin (§ 182, subd. (a)(1)); possession of methamphetamine while armed with a firearm (Health & Saf. Code, § 11370.1, subd. (a)); possession of heroin for sale (Health & Saf. Code, § 11351); possession of cocaine for sale (Health & Saf. Code, § 11351); possession of methamphetamine for sale (Health & Saf. Code, § 11378); possession of an assault weapon (§ 30605, subd. (a)); possession of a firearm by a felon (§ 29800, subd (a)(1)); conspiracy to commit aggravated assault (§ 182, subd. (a)(1)); conspiracy to commit robbery (§ 182, subd. (a)(1)); extortion (§ 520); conspiracy to commit arson (§ 182, subd. (a)(1)); kidnap for ransom, reward, or extortion (§ 209, subd. (a)); and robbery (§ 211).
The amended information further alleged Benavides had suffered two prison priors, one serious felony prior, and one strike prior.
Guilty Plea
After initially pleading not guilty, Benavides agreed to plead guilty to five offenses and to admit certain enhancement and prior allegations, in exchange for dismissal of the balance and leaving sentencing to the trial court's discretion.
Specifically, in case number SCS287783, Benavides agreed to plead guilty to making a criminal threat. This count was based on the allegation that he told his girlfriend's ex-boyfriend, with whom she had a child, "I'm going to fuck you up. I'm going to catch you on the streets." Benavides also agreed to admit one serious felony prior.
In case number SCD272074, Benavides agreed to plead guilty to the following offenses:
• Robbery: Benavides discussed with Ayala (the high-ranking Mexican Mafia member) and an associate their belief that a gang member was overcharging them for drugs and providing inferior product. The associate then threatened the dealer with violence to obtain his supplier and customer contacts.
• Conspiracy to commit aggravated assault: Benavides and Ayala discussed that Benavides should assault an alleged child molester.
• Possession of cocaine for sale: Detectives executing a search warrant on a location at which Benavides was known to store contraband found: a digital scale; a safe containing salable quantities of cocaine, methamphetamine, and heroin; and an "AK-type" rifle, a loaded magazine, and a shoulder holster.
• Attempted extortion: In a phone call among Benavides, Ayala, and a drug dealer, Benavides and Ayala threatened violence against the drug dealer to extract a "fine" for "cheating."
Benavides also agreed to admit the gang enhancement allegations attached to each of these counts, as well as the firearm and out-on-bail enhancement allegations attached to the drug-possession count. Finally, Benavides agreed to admit the serious felony prior and strike prior allegations.
The court accepted Benavides's change of plea, dismissed the balance of charges, and set the matter for sentencing.
Sentencing
At the sentencing hearing, the trial court denied Benavides's Romero motion (discussed in part I, post), struck the serious felony prior, and sentenced him to 28 years in prison.
The court also ordered Benavides to pay the following assessments, fees, and fines: a $10,600 restitution fine (§ 1202.4) and corresponding, suspended supervision-revocation fine (§ 1202.45); a $200 court operations assessment (§ 1465.8); a $150 conviction assessment (Gov. Code, § 70373); a $154 criminal justice administration fee (Gov. Code, § 29550 et seq.); a $39 theft fine (§ 1202.5); a $205 lab fee (Health & Saf. Code, § 11372.5, subd. (a)); and a $615 drug program fee (Health & Saf. Code, § 11372.7, subd. (a)).
The court imposed a $10,000 fine in case number SCD272074, and a $600 fine in case number SCS287783.
DISCUSSION
I. No Error in Denying Romero Motion
Benavides contends the trial court's denial of his Romero motion "was unreasonable and constituted an abuse of discretion" because he "does not fall within the spirit of the Three Strikes Law." We disagree.
A. Background
As part of his plea deal, Benavides admitted he was convicted in 2012 of first-degree residential burglary, a strike conviction. Before sentencing, however, Benavides filed a Romero motion seeking to strike this strike.
In support of his motion, Benavides argued (1) the strike was remote in time and nonviolent; (2) a Three Strikes punishment would be disproportionate to the severity of the current offense and his criminal history; (3) he displayed remorse and accepted guilt at an early stage; (4) he is not a danger to society; and (5) there was no property damage or harm done to any victim.
Benavides further argued he had been "a bright and exceptionally articulate child" and a "solid student." But he had a "difficult home life" and his "innocence was consumed" when he became involved in the juvenile justice system. Benavides supported his argument with several character references, certificates of achievement, and samples of his poetry and artwork.
The prosecution opposed Benavides's Romero motion, addressing in detail Benavides's current charges and extensive criminal history. The prosecution described Benavides's criminal history as follows:
• Grand theft person (§ 487 , subd. (c)) in 2002: "At the age of 13, [Benavides] was arrested after a police officer witnessed him holding the victim around the waist, with his hands in the victim's pockets." Benavides committed five probation violations while on home supervision for this offense.
• Burglary (§ 459) in 2004: At about age 15, Benavides "burglarized a car" and "attempted to take another car from a victim by striking it with a knife and screwdriver. He fled police and once caught, a knife, .22 caliber gun . . . and meth were found in the car."
• Aggravated assault (§ 245 , subd. (a)(1)) in 2004: "At 15 years old, [Benavides] confronted the victim and claimed his gang and gang moniker. He later stood outside the victim's home armed with a brick and glass bottle and called him to come out. He threw a rock at the victim and then chased him down the block with a knife in his hand."
• Escape from a juvenile facility (Welf . & Inst. Code, § 871, subd. (a)) in 2006: "At age 17, [Benavides] escaped Camp Barrett; he was arrested in Los Angeles for robbery and detained there." He was committed to the Department of Juvenile Justice for the maximum term of eight years.
• Aggravated assault (§ 245 , subd. (a)(1)) in 2007: The record does not disclose the nature of this offense, which was Benavides's first adult conviction. He was
sentenced to the upper term of four years in prison, after which he committed three parole violations.
• Contempt of court (§ 166 , subd. (a)(4)) in 2010: The record does not disclose the nature of this offense. Benavides was sentenced to 180 days in jail.
• Residential burglary (§§ 459 , 460) and possession of a controlled substance while armed (Health & Saf . Code, § 11370.1, subd. (a)) in 2012: The burglary conviction is Benavides's strike prior. "[Benavides] committed a residential burglary and stole almost $3,000 worth of property. A Fourth Waiver [search] of [his] residence was conducted and in addition to finding the victim's property, officers located a loaded .22 caliber revolver, methamphetamine and morphine." Benavides was sentenced to five years in prison, and was granted parole in 2015.
Although omitted from the prosecution's sentencing memorandum, the probation report reveals that in 2005 Benavides was committed to Camp Barrett for 365 days for possession of a deadly weapon. (§ 12020, subd. (a)(1)).
Although about four years had elapsed between Benavides's strike conviction and his commission of the instant offenses, the prosecution argued the strike was not remote in time because Benavides received a lengthy prison sentence on his strike conviction and was on parole when he committed the instant offenses. The prosecution also emphasized that Benavides's "new offenses are similar to his prior offenses in that they involve the use of weapons, narcotics, violence, and the threat of violence."
The trial court denied Benavides's Romero motion. The court acknowledged Benavides is "well spoken," "think[s] logically," is a talented artist, and has a loving family. But weighed against Benavides's "history, what's happened in the past, [and] the kind of offenses that [he had] completed before," the court concluded Benavides fell within the spirit of the Three Strikes law.
B. Relevant Legal Principles
A trial court has the discretion under the Three Strikes law to dismiss or "strike" a strike prior "in furtherance of justice." (§ 1385, subd. (a); Romero, supra, 13 Cal.4th at p. 504.) In deciding whether to do so, "the court . . . must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the [Three Strikes law]'s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies." (People v. Williams (1998) 17 Cal.4th 148, 161.)
The Three Strikes law "not only establishes a sentencing norm, it carefully circumscribes the trial court's power to depart from this norm . . . . [T]he law creates a strong presumption that any sentence that conforms to these sentencing norms is both rational and proper." (People v. Carmony (2004) 33 Cal.4th 367, 378 (Carmony).) "The court is presumed to have considered all of the relevant factors in the absence of an affirmative record to the contrary." (People v. Myers (1999) 69 Cal.App.4th 305, 310.)
We review the trial court's ruling for an abuse of discretion. (Carmony, supra, 33 Cal.4th at p. 378.) " ' "[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 objectives, and its discretionary determination to impose a particular sentence will not be set aside on review." ' " (Id. at pp. 376-377.)
C. Analysis
Benavides has not met his "burden . . . to clearly show that the sentencing decision was irrational or arbitrary." (Carmony, supra, 33 Cal.4th at p. 378.) The record shows Benavides has an extensive, largely uninterrupted history of significant criminal activity. When shown leniency through probation or parole, he performed poorly. His most recent prior conviction was for his strike offense, which involved a residential burglary and possession of narcotics and a firearm. And although that conviction occurred in 2012, Benavides received a lengthy prison sentence and appears to have been on parole (or had only recently been discharged) when he began committing the instant offenses. These offenses involved conspiring with a high-ranking gang member, threats of violence, narcotics distribution, and possession of firearms (including an assault weapon). The trial court did not abuse its discretion in concluding these factors established that Benavides fell within the spirit of the Three Strikes law, despite his positive personal attributes.
Benavides's guilty plea included a Harvey waiver, by which he acknowledged the trial court could "consider his prior criminal history and the entire factual background of the case, including any . . . dismissed . . . charges . . . when . . . imposing sentence."
II. Benavides Forfeited His Due Process Challenge
Benavides contends the trial court's imposition of a $150 court facilities assessment, $200 court operations assessment, and a $10,600 restitution fine (and corresponding, suspended supervision-revocation fine) without first determining his ability to pay them violated his due process rights as recently enunciated in Dueñas, supra, 30 Cal.App.5th 1157. The Attorney General maintains Benavides forfeited this challenge by failing to raise it in the trial court. We agree with the Attorney General that Benavides has forfeited this challenge.
Curiously, Benavides does not raise a due process challenge to the trial court's imposition of a $39 theft fine, $205 lab fee, or $615 drug program fee without first determining his ability to pay them.
Because we find the issue forfeited, we do not reach the Attorney General's alternative argument on the merits that allegedly excessive fines are subject to analysis under an Eighth Amendment framework rather than a due process framework. Benavides has not asserted an Eighth Amendment challenge. --------
Benavides acknowledges he did not raise a due process objection below, but maintains his challenge is preserved for appeal because Dueñas, which was decided after he was sentenced, "represents a dramatic and unforeseen change in the law, excusing trial counsel's failure to object at sentencing." We disagree.
Notably, the statute authorizing the $10,600 restitution fine—comprising about 97 percent of the $10,950 in assessments and fines Benavides challenges on appeal—authorized the trial court to consider his ability to pay. Specifically, by imposing a restitution fine of $10,600 under section 1202.4, subdivision (b), the trial court exceeded the $300 minimum fine, thereby authorizing the court to "consider[]" Benavides's "[i]nability to pay." (§ 1202.4, subd. (c).) By statute, Benavides bore "the burden of demonstrating his . . . inability to pay." (§ 1202.4, subd. (d).)
Benavides's silence during sentencing in the face of a $10,600 fine he could have challenged on the basis of his alleged inability to pay "is a classic example of the application of the forfeiture doctrine relied upon by the California Supreme Court in numerous criminal sentencing cases decided well before Dueñas." (People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1033; see People v. Nelson (2011) 51 Cal.4th 198, 227 [applying the forfeiture rule to an unpreserved ability-to-pay challenge to a restitution fine].) And because Benavides failed to object at sentencing to the $10,600 restitution fine on ability-to-pay grounds, he has forfeited the issue on appeal as to the remaining $350 in challenged assessments. (See Gutierrez, at p. 1033 ["As a practical matter, if [the defendant] chose not to object to a $10,000 restitution fine based on an inability to pay, he surely would not complain on similar grounds regarding an additional $1,300 in fees."].)
DISPOSITION
The judgment is affirmed.
HALLER, J. WE CONCUR: HUFFMAN, Acting P. J. DATO, J.