From Casetext: Smarter Legal Research

People v. Bonilla

Court of Appeals of the California, Second Appellate District, Division Two.
Nov 4, 2003
B162586 (Cal. Ct. App. Nov. 4, 2003)

Opinion

B162586.

11-4-2003

THE PEOPLE, Plaintiff and Respondent, v. JAVIER BONILLA, Defendant and Appellant.

Nancy L. Tetreault, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews and William T. Harter, Deputy Attorneys General, for Plaintiff and Respondent.


Javier Bonilla was convicted by a jury of second degree robbery, with findings that (a) he used a firearm in the commission of the offense and (b) the crime was committed for the benefit of a street gang. He was sentenced to an aggregate term of 12 years in prison. On appeal, Bonilla argues that (1) the trial court improperly excluded relevant evidence, (2) a 10-year sentence enhancement for using a gun constitutes cruel and unusual punishment, and (3) the gang enhancement must be stricken. We agree that a new hearing is in order to properly sentence Bonilla on the gang enhancement. Otherwise, we find no error and affirm the judgment.

FACTS

On September 11, 2001, Paul C. walked home from middle school with his friend Rudy S. Paul C. was wearing a gold chain, a birthday gift from his father. A few blocks from school, two youths confronted the boys; one of them said "Maravilla" and demanded Paul C.s gold chain. Paul C. understood Maravilla to be the name of a street gang. When Paul C. resisted, the individual who uttered the gang name lifted his shirt and displayed a gun that was tucked into his waistband. His companion was holding a knife. Fearing injury, Paul C. relinquished his necklace to the gun-toting robber.

The robbery was reported to the sheriffs department. Investigator Faustino Del Valle interviewed Paul C., who was unable to identify the robber. Paul C. stated that he looked downward because the people who approached him looked like gang members. At trial, Paul C. claimed he did not know who robbed him, and was unable to identify appellant in the courtroom. Paul C. was a very unwilling witness. During cross-examination, Paul C. denied that he fabricated a story about being robbed.

Rudy S. recognized appellant and promptly identified him in a photographic lineup. He told Deputy Del Valle that he knows appellant by the moniker of "Fox." At trial, Rudy S. admitted that he was afraid to be in court. Though he knows appellant, Rudy S. denied that he saw appellant with a gun, taking Paul C.s chain. He denied telling the police that he witnessed the robbery or that "Fox" committed it. On the other hand, Rudy S. recognized his own signature on the photo identification card depicting appellant. In Rudy S.s handwriting, the card read, "Picture 4 is one that took chain [sic]." At trial, Rudy S. did not know why he wrote that statement.

Del Valle is an experienced officer who has handled thousands of gang-related investigations. He opined that the boys middle school is located on the turf of "El Hoyo Maravilla," a street gang that commits violent felonies. Del Valle was not familiar with appellant. He asked a fellow gang officer who "Fox" might be and was immediately directed to a photograph of appellant. Appellant is a member of the Hoyo Maravilla gang and sports its tattoo. Appellant is the only Hoyo Maravilla member with the moniker "Fox." Del Valle testified that this robbery was committed in furtherance of the gangs criminal purposes, and that by uttering the name "Maravilla" to victims, gang members instill an atmosphere of fear and intimidation in the community.

Paul C.s father testified that he noticed his sons chain was missing and called the police to report the robbery. Mr. C. claimed that Del Valle told Paul C. that he had to identify appellant as the person who stole the chain, and warned that if Paul C. failed to come to court, Del Valle would "haul" Mr. C. to jail. Del Valle denied making such a statement.

DISCUSSION

1. Exclusion of Evidence

Appellant contends he was denied due process because the trial court precluded him from eliciting that Mr. C. reported the necklace stolen to collect insurance proceeds for its loss. Appellant claims that he was entitled to question Mr. C. about the insurance claim because it supplied Paul C. with a motive to lie about the robbery. The court rejected appellants offer of proof because Paul C. consistently maintained that he was robbed and there was no evidence that he was motivated by a desire for insurance benefits or that his testimony was coerced by his father.

To determine the credibility of a witness, the jury may consider any matter that has a tendency to prove or disprove the truthfulness of the testimony, including the existence of bias, interest, or other motive. (Evid. Code, § 780, subd. (f).) Here, appellant was attempting to prove the bias of Paul C. by eliciting testimony that Mr. C. sought to collect on an insurance policy. The trial court could not discern a nexus between Mr. C.s interest in an insurance policy and the testimony or credibility of Paul C. There is no reason to believe that Paul C. knew his father had insurance for the loss.

The trial courts ruling was correct. If the defense wished to prove that the victim, Paul C., was motivated to lie by the prospect of receiving insurance money, then the defense needed to re-call Paul C. to the witness stand and inquire whether he knew of the insurance policy and whether he was coerced by his father to lie about the robbery. The defense never re-called Paul C. to the stand to pursue this line of questioning.

In any event, it is highly unlikely that Paul C., a fearful and uncooperative witness, concocted a story about being robbed. On cross-examination, after inquiring whether Paul C. understood the difference between the truth and a lie, defense counsel asked, "Well, you said . . . you were scared to tell your father because he might think you lost the chain; is that right?" Paul C. answered "Yes." Defense counsel stated, ". . . But you didnt lose the chain, it had been robbed; right?" Paul C. answered, "Yes."

Like the trial court, we fail to see how any after-the-fact claim by Mr. C. about an insurance policy can alter Paul C.s firm denial that he lost the chain. Appellants constitutional rights were not infringed by the trial courts reasonable restriction of the evidence, where the proper route to assail Paul C.s testimony was to ask him point-blank whether he was motivated by the prospect of recovering insurance money for his chain, and then use Mr. C. to impeach the boy if Paul C. denied knowing of the insurance policy. Application of the ordinary rules of evidence—including the restriction of hearsay or character evidence—does not infringe on the accuseds right to present a defense. (People v. Jones (1998) 17 Cal.4th 279, 305.)

2. Cruel and Unusual Punishment

Appellants total term was 12 years: 2 years for the robbery plus 10 years for his use of a gun. Once the jury found that appellant used a gun during the robbery, the court had no discretion to strike the gun use enhancement. (Pen. Code, § 12022.53, subd. (h).) The legislative purpose of section 12022.53 is to treat firearm offenses more harshly to deter the use of firearms and save lives, because firearms can harm a greater number of victims more rapidly than other weapons. (People v. Perez (2001) 86 Cal.App.4th 675, 678-679.) Appellant asserts that the 10-year gun use enhancement of his sentence pursuant to Penal Code section 12022.53 constitutes cruel and unusual punishment under the state and federal constitutions.

a. Federal Analysis

The Supreme Court applies a "proportionality" test to determine whether a lengthy prison sentence is cruel and unusual punishment, within the meaning of the Eighth Amendment of the federal constitution. (Ewing v. California (2003) 538 U.S. 11, 17.) Case law suggests that virtually any noncapital sentence passes constitutional muster, regardless of length. A few examples will suffice: Rummel v. Estelle (1980) 445 U.S. 263 [affirming a sentence of life without the possibility of parole for a small-time thief who stole a grand total of $ 229.11 over the course of three check and credit card offenses]; and Hutto v. Davis (1982) 454 U.S. 370 [affirming a 40-year sentence for possession with intent to distribute 9 ounces of marijuana with a street value of $200]. Given the Supreme Courts reluctance to question state laws mandating lengthy prison sentences, and its willingness to affirm Draconian sentences for relatively minor crimes, it is clear that appellants sentence of 12 years for the more serious crime of armed robbery is not grossly disproportionate and does not violate the Eighth Amendments proscription on cruel and unusual punishment.

b. State Analysis

To determine whether the punishment fits the crime under state law, the courts consider "factors intrinsic to the [sentencing] scheme, such as the nature and circumstances of the defendants present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects." (People v. Williams (1998) 17 Cal.4th 148, 161.) The courts give particular regard to the degree of danger presented to society by the nature of the offense and/or the offender. (People v. Dillon (1983) 34 Cal.3d 441, 479.)

Appellant was born in December 1986. We see that appellants criminal record began at the age of thirteen, as reflected in his probation report. The report shows a sustained juvenile petition for taking a vehicle without the owners consent in April 2000, as well as a burglary in July 2000. Appellant was sentenced to camp/community placement on the first offense, and to home probation on the second. He was recently released from his camp/community placement at the time he committed the present offense. The probation report indicates that appellant struggles with drug abuse. He is an active gang member.

Appellants lengthy sentence in this case reflects societys desire for protection from his continuing criminality. It is unfortunate that appellant joined a street gang and embarked on a criminal career at the age of 13. His first two crimes did not involve direct confrontation with the victims of his offenses. When he committed the present offense at the age of 14, appellant brazenly confronted his victim and displayed a firearm to force compliance with his demands. Appellant was not deterred by his first two sustained petitions, nor was he rehabilitated by his camp/community placement. Instead, he has chosen to increase the level of danger and aggression in the commission of his crimes.

Appellant maintains that "the robbery in this case was relatively minor." This is untrue. Appellant displayed his gun and uttered his gang affiliation to instill fear into his victim and the eye-witness, both of whom practically had to be dragged into court to testify. Once in court, the terrified boys pretended that they had no idea what happened. This robbery was not "minor" just because no one was shot or pistol-whipped: appellants goal of terrorizing his community into silence to avoid conviction for his crimes was furthered by his conduct in this robbery.

3. Gang Enhancement

Respondent concedes that the trial court improperly imposed a 10-year concurrent term for the gang enhancement. By the terms of the statute, a gang enhancement must be imposed consecutively. (Pen. Code, §§ 186.22, subd. (b)(1).) If not imposed consecutively, the enhancement may be stricken in the interests of justice. (Pen. Code, § 186.22, subd. (g).) The prosecution expressly did not seek any additional prison time for the gang enhancement, and the trial court apparently accepted the Peoples recommendation, noting that appellant potentially faced 25 years in prison.

We must remand the case for a new sentencing hearing in which the trial court will have the opportunity to "specif[y] on the record and enter[] into the minutes the circumstances" indicating whether or not "the interests of justice would best be served" by striking the gang enhancement. (Pen. Code, § 186.22, subd. (g).)

DISPOSITION

The order of sentencing is reversed. The cause is remanded for a new sentencing hearing at which the trial court will consider whether to impose or strike the Penal Code section 186.22 gang enhancement. In all other respects, the judgment is affirmed.

NOTT, J., DOI TODD, J. we concur.


Summaries of

People v. Bonilla

Court of Appeals of the California, Second Appellate District, Division Two.
Nov 4, 2003
B162586 (Cal. Ct. App. Nov. 4, 2003)
Case details for

People v. Bonilla

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. JAVIER BONILLA, Defendant and…

Court:Court of Appeals of the California, Second Appellate District, Division Two.

Date published: Nov 4, 2003

Citations

B162586 (Cal. Ct. App. Nov. 4, 2003)