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People v. Benenati

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Feb 10, 2012
D058406 (Cal. Ct. App. Feb. 10, 2012)

Opinion

D058406

02-10-2012

THE PEOPLE, Plaintiff and Respondent, v. JOSEPH BENENATI, JR., Defendant and Appellant.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCD220092)

APPEAL from a judgment of the Superior Court of San Diego County, Joseph P. Brannigan, Judge. Affirmed.

INTRODUCTION

A jury convicted Joseph Benenati, Jr., of assault with a firearm (Pen. Code, § 245

subd. (a)(2)), three counts of arson of an inhabited structure (§ 451, subd. (b)), four counts of arson of a structure (§ 451, subd. (c)), and nine counts of arson of property (§ 451, subd. (d)). In addition, Benenati admitted having a prior serious felony conviction and a prior strike conviction. The trial court sentenced him to an aggregate term of 40 years four months in prison.

Further statutory references are also to the Penal Code unless otherwise stated.

Benenati contends there is insufficient evidence to support his conviction because there was no physical evidence connecting him to the crimes and the other evidence against him was not reliable enough to sustain the judgment. We conclude there is no merit to this contention and affirm the judgment.

BACKGROUND

Prosecution Evidence

Assault with a Deadly Weapon Charge

Early one morning in November 2008 Emergency Medical Technician Troy Escoffier was driving a paramedic unit with his coworker, Joseph Ramirez. They were headed downtown when Escoffier noticed a white minivan following them. As Escoffier slowed for a stop sign, the minivan maneuvered aggressively and pulled up beside him. The driver tried to get Escoffier's attention. Thinking the driver might need some medical aid, Escoffier looked over. A nearby streetlight lit the area, the minivan's windows were open and Escoffier had a clear view of the driver, whom he identified as Benenati. Escoffier, who is familiar with firearms, saw Benenati pull out a black, semiautomatic handgun. Benenati then reached across the passenger seat and pointed the gun at Escoffier.

Escoffier sank down in his seat, moved his head back from the window, told Ramirez the driver of the minivan had a gun, and then drove away quickly. Benenati chased him at speeds between 60 and 70 miles per hour down a hill and through a red light. Benenati eventually veered off. Escoffier and Ramirez immediately reported the incident to the police department.

Approximately two months later, Escoffier was driving a paramedic unit and was parked at a convenience store. A white minivan driven by Benenati pulled up next to him. Escoffier recognized Benenati right away. Escoffier asked his partner to call the police department. Escoffier then asked Benenati, "Can I help you?" Benenati replied, "Yeah, I just wanted to see what you look like." Benenati's remark intimidated Escoffier, prompting Escoffier to drive away and call for immediate cover.

A police officer went to the convenience store and contacted Benenati. Benenati was initially angry about the contact, but calmed down after awhile and was cooperative. With Benenati's permission, police officers searched Benenati and his car. They did not find any weapons in his possession.

Five days later, Escoffier went into his company's headquarters to prepare a report of the incident. Ten minutes later, Benenati walked in. Benenati went to the office to learn the name of the employee who had complained about him. Escoffier recognized Benenati, but Benenati did not notice Escoffier. Escoffier notified his supervisor, Dan Summers, of Benenati's presence.

Summers contacted the police department and then went to talk to Benenati. Benenati was agitated, animated and frustrated because the company's receptionist would not give him Escoffier's name. Summers was able to calm Benenati down by letting him talk and listening to his list of complaints against the fire department and paramedics. Essentially, Benenati was bothered by the constant noise from the fire station near his home. He also said fire and police department personnel chased him when he left his home.

When it neared the close of business, Summers persuaded Benenati to continue their conversation outside. By then, three or four police units were on the scene, but out of sight. When Summers's conversation with Benenati ended, police officers rapidly appeared and handcuffed him. There was also a helicopter flying overhead, which Benenati thought was unnecessary. Benenati became upset again and yelled at the helicopter.

A few months later, Medical Supply Technician Russell Belcher, who wears the same uniform and works for the same company as Escoffier, was leaving for work when he saw his neighbor, Benenati, in a white minivan. The minivan was idling in the middle of the street in front of Belcher's home. Belcher was intimidated by Benenati because several times when Belcher, who is gay, walked past Benenati, Benenati had screamed out "f—ing f—t." In addition, twice in the past, Benenati drove slowly back and forth in front of Belcher's house honking the minivan's horn. Consequently, when Belcher saw Benenati that morning, Belcher drove away in the direction opposite from that which the minivan was facing. However, Benenati "radically" reversed his minivan and started tailgating Belcher. Belcher escaped Benenati by driving through two stop signs and onto the freeway. Belcher reported the incident to Summers, but not to the police department. Escoffier and Belcher's employer subsequently obtained a permanent restraining order against Benenati.

Arson Charges

Early in the morning a few days after Escoffier's employer obtained the permanent restraining order against Benenati, a series of 11 fires broke out in the North Park area of San Diego. The fires were all within a few minutes' walk of Benenati's home. Although there was no DNA or fingerprint evidence connecting the fires to a particular person, a certified fire investigator determined the fires were set by a serial arsonist. The fires all had similar causes and origins. The fires were all set by igniting ordinary combustibles, such as paper, plastic bags, and cloth, with an open flame, such as a match or a lighter. Several of the fires were started in trash cans or recycling containers. The fires were in proximity to one another and were set within approximately an hour and a half of one another.

The first reported fires were at an architectural firm on 30th Street. Just before the fires were set, Todd Defreitas was having a cigarette on his balcony, which was across a well-lit alley that overlooked the architectural firm. At a distance of approximately 60 or 70 feet, Defreitas saw a man walk into the firm's courtyard. The man left taking a broom with him. After the man left, Defreitas saw two fires in the courtyard. Defreitas went over to the firm and called 911.

Defreitas described the man to an arson detective as heavy-set and either Hispanic or Italian. Defreitas also told the detective the man had black, bushy, curly hair; was wearing dark clothing and carried a large, dark colored backpack. At trial, Defreitas identified Benenati, who is Filipino, as the man he saw. Defreitas also identified Benenati in a photo lineup five days after the fires. Benenati was the only person in the photo lineup with long hair and his hair was the curliest. However, Defreitas never told the detective the man he saw had long hair. In addition, Defreitas testified he based his identification on the man's face, not his hair. He had specifically been admonished not to base his identification on the hair, as extraneous features could be different. He had no difficulty identifying Benenati and was certain Benenati was the person he saw from his balcony.

About a half hour after Defreitas reported the fire at the architectural firm, someone reported a fire in a dumpster in the back of a bird store on El Cajon Boulevard. A store employee, who lived nearby, was notified of the fire. Twenty minutes earlier, the employee's dogs started barking and she went outside to see what was going on. She smelled smoke. About six feet away from her, she saw a man bent down in front of a car. He had two rolled-up magazines. One magazine was burning and he was trying to light the other one. He then stood up and left.

After she was notified of the store fire, she went to the store and attended to the birds. She did not report what she had seen to the police department; however, she told her brother, who was also at the store, that if anyone wanted to ask any questions, she saw a guy lighting a fire by her home. No one contacted her.

She received the trial court subpoena on behalf of the store's owner and learned for the first time that there was a criminal prosecution related to the fire. She told the process server she had seen the man who started it. She was subsequently subpoenaed, but not interviewed.

At trial, the prosecutor called her to testify and she told what she had seen for the first time. She identified Benenati as the man she saw, but said his hair was longer on the night of the fire. Before identifying Benenati in court, she had never seen any photographs of him. After she identified him, the prosecutor showed her a photograph of him when his hair was longer. She testified he was definitely the person she saw that night.

An arson detective went to the business next to the architectural firm. The business had two motion sensor cameras mounted on the rear of its building. The detective viewed both the original and a copy of the video footage recorded by the cameras around the time of the fires at the firm. According to the detective, the images on the copy were not as clear as the images on the original. In addition, the copy did not include all of the images the detective saw on the original video, including what the detective thought was a fire that self-extinguished after the arson suspect walked away from it.

The detective explained that, on the original, he was able to clearly see the arson suspect's clothing, hairstyle, and build. After viewing the original, the detective was 70 percent sure he would be able to identify the person if he saw him. When he subsequently met Benenati, the detective had no doubt Benenati was the person he saw on the video. However, the detective acknowledged at trial that the copy of the video shown to the jury was not as clear as the original and the images of the arson suspect were blurry.

The same detective prepared the photo lineup shown to Defreitas. He selected photographs for the lineup based on Defreitas's description of the arson suspect as a Hispanic or Italian man with curly hair. The detective acknowledged that Benenati is Filipino, rather than Hispanic or Italian. The detective also acknowledged that the other men depicted in the lineup had curly hair only on the tops of their heads, while Benenati had curly hair all over his head. The detective further acknowledged he used an older driver's license photo of Benenati for the lineup rather than a photo taken of him shortly after the fires, in which Benenati's hair appeared shorter and less curly. According to the detective, the driver's license photo of Benenati was the only photo available to him in the computer system he used to put together the photo lineup. He said he did not use the newer photo of Benenati because he thought using the new photo would be more suggestive.

Defense Evidence

Benenati testified that at the time of the fires, he had been living in the North Park area for about eight months. He owned a white minivan. He denied knowing Escoffier or anything about the assault on him. In addition, he also denied ever owning or even holding a gun. He also denied knowing Belcher, calling him a derogatory name or chasing him from their neighborhood.

Although he admitted being at the convenience store a few months after the assault, he denied encountering Escoffier there. He said the first time he saw Escoffier was at the hearing on the restraining order.

He explained that he went to the store to get a drink and his vehicle was the only one in the parking lot when he went inside. When he walked back outside, a police officer drove up with his door wide open and his gun pointed at Benenati's head. The officer ordered Benenati to raise his hands, walk slowly to the police car and put his hands on the hood of the police car. The officer handcuffed him and aggressively threw him onto the car. Officers then searched him and his van without his permission and did not find anything. They kept him detained for at least 45 minutes knowing the handcuffs were hurting him. By the time he was released, he was crying from the pain.

Bothered by the accusations that Escoffier had made against him, Benenati went to Escoffier's employer's office with the objective of stopping Escoffier from continuing to make accusations against him. As he sat in the lobby waiting to speak with a supervisor, he heard Summers say, "Ha, Ha, I called San Diego Police on him again."

After determining Summers was not going to help him, Benenati left the building. As Benenati was walking to his car, he saw a police officer hiding behind a trash can. The officer and two others approached him with their guns pointed at him while a helicopter hovered overhead. The officers took him to the ground and handcuffed him. Benenati realized then that Summers had set him up.

The officers searched Benenati and his van. They did not find anything and eventually released Benenati.

Benenati was later served with notice of the restraining order hearing. He attended the hearing and testified. In contrast to his trial testimony, he admitting at the hearing he had contacted Escoffier at the convenience store. He explained to the court conducting the hearing that he was trying to see who Escoffier was because members of the gay community, which he was certain included Escoffier, had been harassing him by "going around with their sirens." After the court issued the restraining order, Benenati agreed to comply with it.

At trial, he testified he found the restraining order upsetting and inconvenient because of the prevalence of fire stations. Nonetheless, he testified the restraining order "was no big deal" and was not enough to prompt him to start fires.

When the fires occurred, Benenati was at home. He learned about the fires from friends. He did not set the fires and had no problems with firefighters or paramedics, as paramedics had saved his life a few years earlier when he had been stabbed. Likewise, he testified he had no problems with members of the gay community, as he had friends who were gay and his brother was gay.

Moreover, Benenati testified he was physically incapable of traveling all over North Park to set the fires because he is out of shape and has thyroid disease, asthma, diabetes, and high cholesterol. He also has sleep apnea and falls asleep easily. He repeatedly accused the prosecutor of staging everything and setting him up.

Benenati admitted to having been a drug addict. In addition, he admitted to having a 1998 conviction for assault with a deadly weapon, but he denied ever hurting anybody. He further denied the weapon used in the offense was a gun, although he admitted the victim accused him of using a gun. He also admitted to a 2001 conviction for receiving stolen property and 1998 conviction for grand theft.

DISCUSSION

Benenati contends there is insufficient evidence to support his conviction because there was no physical evidence connecting him to the crimes and the testimony of Escoffier, Defreitas, Ezell, and the arson detective was "tainted by suggestion, grossly biased, or otherwise insufficiently reliable to sustain the judgment." We conclude this contention lacks merit.

" 'In reviewing a challenge to the sufficiency of the evidence, we do not determine the facts ourselves. Rather, we "examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—evidence that is reasonable, credible and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." [Citations.] We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] [¶] The same standard of review applies to cases in which the prosecution relies primarily on circumstantial evidence . . . . [Citation.] "[I]f the circumstances reasonably justify the jury's findings, the judgment may not be reversed simply because the circumstances might also reasonably be reconciled with a contrary finding." [Citation.] We do not reweigh evidence or reevaluate a witness's credibility.' " (People v. Scott (2011) 52 Cal.4th 452, 487.)

In this case, although there was no physical evidence linking Benenati to the assault on Escoffier, there was testimonial evidence from Escoffier and corroborating testimonial evidence from his partner, Ramirez. This testimony sufficiently supports Benenati's assault conviction. Similarly, although there was no physical evidence linking Benenati to the arsons, there was testimonial evidence from Defreitas, who saw Benenati light the fires at the architectural firm and from Ezell, who saw Benenati lighting rolled magazines shortly before the fire started behind the bird store near her home. This testimony, coupled with the expert testimony indicating all the fires were set by a single person, the motive evidence, and the evidence of the proximity of Benenati's home to the fires, provide sufficient support for Benenati's arson convictions.

Although, as appellate defense counsel acerbically argues, there were potential weaknesses in Escoffier's, Defreitas's and Ezell's testimony, these potential weaknesses do not preclude the testimony from providing sufficient evidentiary support for the jury's verdict. Trial defense counsel pointed out these very same weaknesses to the jury through her skillful cross-examination and thoughtful closing arguments. The jury, nonetheless, implicitly found the testimony credible. To warrant the rejection of the statements given by a witness who has been believed by the [trier of fact], there must exist either a physical impossibility that they are true, or their falsity must be apparent without resorting to inferences or deductions.(People v. Friend (2009) 47 Cal.4th 1, 41.) Benenati has not made such a showing.

The potential weaknesses with the arson detective's testimony and related video footage evidence argued by appellate counsel and highlighted by trial counsel below do not affect our conclusion. At best, this evidence merely corroborated the other, sufficiently substantial evidence against Benenati. At worst, it neither aided nor detracted from the prosecution's case. In fact, the jury could have and may have reached its verdicts without relying on this evidence. Thus, we conclude Benenati has not established the potential weaknesses with this evidence necessitate reversal of his arson convictions.

DISPOSITION

The judgment is affirmed.

__________

McCONNELL, P. J.

WE CONCUR:

__________

McINTYRE, J.

__________

O'ROURKE, J.


Summaries of

People v. Benenati

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Feb 10, 2012
D058406 (Cal. Ct. App. Feb. 10, 2012)
Case details for

People v. Benenati

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. JOSEPH BENENATI, JR., Defendant…

Court:COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

Date published: Feb 10, 2012

Citations

D058406 (Cal. Ct. App. Feb. 10, 2012)