People v. Benzon CA3 ( 2021 )

Filed 12/17/21 P. v. Benzon CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C089738
Plaintiff and Respondent, (Super. Ct. No. 18FE015471)
v.
DAVID ANTHONY BENZON,
Defendant and Appellant.
A jury found defendant David Anthony Benzon guilty of first degree burglary with
a person present, and further found that defendant had committed a prior serious felony,
had a prior strike conviction, and served a prior prison term. The trial court sentenced
defendant to 10 years in prison. Defendant raises multiple contentions on appeal, arguing
(1) the trial court abused its discretion by denying defendant’s Romero motion (People v.
Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero)) and declining to strike his
prior serious felony enhancement, (2) the prosecutor’s statements at closing misstated the
reasonable doubt standard, violating defendant’s due process rights, (3) defendant’s prior
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prison term enhancement must be stricken per Senate Bill No. 136 (2019-2020 Reg.
Sess.) (Senate Bill 136), and (4) defendant’s counsel was constitutionally ineffective for
failing to object to the fines and fees imposed at sentencing. Agreeing that the prison
prior is invalid in light of Senate Bill 136, we shall remand with directions to strike the
prison prior, resentence defendant, and correct the clerical errors in the abstract of
judgment. In all other respects, we affirm the judgment.
FACTS AND HISTORY OF THE PROCEEDINGS
Flight attendant G. Anderson stayed overnight at a Sacramento hotel. In the
morning while Anderson was still in bed, Anderson heard the door open and saw
defendant in his room. Anderson yelled and chased defendant from his room. The chase
continued to the hotel stairwell, where Anderson tripped and fell, and defendant threw
Anderson’s wallet and crew badge at him. The hotel’s employees eventually called the
police, who apprehended defendant.
The jury found defendant guilty of first degree residential burglary (Pen. Code,
§ 459) (undesignated statutory references are to the Penal Code) with a person present
(§ 667.5, subd. (c)(21)). At a bifurcated proceeding, the jury found true that defendant
had one prior strike conviction (§§ 667, subds. (b)-(i), 1170.12), one prior serious felony
conviction (§ 667, subd. (a)), and that he had served one prior prison term (§ 667.5, subd.
(b)). The trial court sentenced defendant to 10 years, comprised of the lower term of two
years for burglary, doubled for the strike prior, plus five years for the prior serious felony
enhancement and one year for the prior prison term enhancement. It also imposed
various fines, fees, and assessments.
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DISCUSSION
I
Romero Motion
Defendant first argues the trial court abused its discretion by declining to strike his
prior felony conviction in the interest of justice (§ 1385, subd. (a)) pursuant to Romero,
supra, 13 Cal.4th 497. He contends that the trial court failed to consider the remoteness
of his prior strike conviction and mischaracterized his criminal record as “lengthy.”
Prior to trial, defendant moved under section 1385 to strike his 2005 prior serious
felony conviction for assaulting a peace officer with a deadly weapon. In this instance,
defendant was evading police officers in a stolen vehicle when the police officers boxed
his car between vehicles. Defendant hit one of the vehicles as he was fleeing, and one of
the officers had to “dodge into his vehicle” to avoid being struck.
Defendant argued that his criminal record since 2005, which consisted of
convictions for misdemeanor battery (in 2006 and again in 2007), possession of a
controlled substance (in 2011), possession of a controlled substance for sale (in 2011),
and misdemeanor vehicle theft (in 2018), was “minimal” and the result of defendant’s
addiction issues and homelessness. In opposition, the People described defendant’s
actions as a continuous course of criminal conduct, noting defendant had also been
convicted of numerous crimes prior to 2005, including two felonies in 1998 for willfully
evading a peace officer and possession of a controlled substance in prison, and four
misdemeanors between 1979 and 1996. Defendant also violated probation in 2000, 2001,
and 2012.
The trial court denied the motion. Although it did not find a pattern of
increasingly serious criminal acts, it noted there “certainly hasn’t been an absence” of
criminal conduct, describing defendant’s criminal record as “rather lengthy.” The trial
court acknowledged the potential for “some rather harsh effects of the Three Strikes
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scheme,” but concluded that when applying the applicable criteria, defendant fell within
the spirit of the “Three Strikes” statute (§ 1170.12).
Rulings on Romero motions are reviewed for abuse of discretion. (People v.
Myers (1999) 69 Cal.App.4th 305, 309.) Discretion is abused where the trial court’s
decision is “irrational or arbitrary.” (Id. at pp. 309-310.) In exercising its discretion under
Romero to strike a prior serious or violent felony, a 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 scheme’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.) “[A]
defendant who falls squarely within the law’s letter does not take himself outside its spirit
by the additional commission of a virtually uninterrupted series of nonviolent felonies
and misdemeanors over a lengthy period.” (People v. Strong (2001) 87 Cal.App.4th 328,
331.)
Here, the trial court correctly analyzed and weighed the factors favoring and
disfavoring the Romero request, including defendant’s criminal record, the severity of his
crimes, the fact that many of his crimes may relate to his homelessness and addiction
issues, and the potential for overly harsh outcomes when applying the Three Strikes law
(§ 1170.12). The record supports the trial court’s conclusion that defendant did not fall
outside the spirit of the law due primarily to his extensive criminal history. Indeed, in the
course of his life, and although defendant spent years incarcerated, defendant still
committed five felonies (though one of his felony possession charges would now be
considered a misdemeanor after Proposition 47’s, the Safe Neighborhoods and Schools
Act (enacted by the electorate Nov. 4, 2014), amendment to the Health & Saf. Code,
§ 11377) and seven misdemeanors, including two felonies and three misdemeanors after
2005. He also violated probation multiple times. Thus, although his crimes since the
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2005 strike conviction were nonviolent, his criminal record reflects generally consistent
criminal activity spanning several decades that would fall within the spirit of the law.
Further, while remoteness of a prior conviction tends to lessen its value as a
predictive factor of a defendant’s behavior, this is not necessarily so when the conviction
has not been followed by a blameless life. (See People v. Mendoza (2000)
78 Cal.App.4th 918, 925-926.) Defendant’s numerous convictions and years of
incarceration following his prior strike conviction indicates that he has not been
reformed. While we note defendant’s explanation that his extensive and on-going
criminal history is a result of his addiction and homelessness, that does not excuse his on-
going criminal conduct.
Finally, defendant argues the trial court erred by relying on its own incorrect
statement that defendant had “a number of 11377 and 378 charges,” when the probation
report reveals only one conviction for Health and Safety Code section 11377 and one for
section 11378 since the prior strike conviction. But the trial court referenced those
statutes to agree with defense counsel’s point that “there is at least a trend towards
. . . treating a lot of categories of acts that fell within those statutes at the time
differently.” More fundamentally, the trial court reviewed the record of defendant’s
numerous convictions as stated in the parties’ briefs and argued at the hearing and found
his background, character, and prospects do not place him outside the spirit of the Three
Strikes scheme. The trial court did not abuse its discretion.
As we find the trial court did not abuse its discretion by denying the Romero
motion, we further find, for the same reasons, that the trial court did not abuse its
discretion by declining to strike the punishment for defendant’s serious felony
enhancement in the furtherance of justice, in accordance with section 1385, subdivision
(b)(1).
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II
Reasonable Doubt
Defendant next contends the prosecutor violated his due process rights by equating
reasonable doubt to a matter of common sense in his closing argument. Though defense
counsel did not specifically object to the prosecutor’s two statements urging the jury to
use their common sense, defendant still insists that the issue is not forfeited because any
objection would have been futile under California law.
In his closing argument, the prosecutor argued that it was immaterial whether the
hotel room door was latched because regardless, defendant entered the room. He then
said, “The reality is you are not being asked to shut off your own critical thinking. You
are not being asked to ignore your common sense and to look at all items of evidence,
okay.” Defense counsel objected, “with regards to the statement, ‘You’re not required to
look at all of the items in evidence.’ ” The trial court told the jury, “I have given you
instructions on the law as to what your duties are and if there is any question, please refer
to the written instructions . . . that you will have in the jury room with you.” The
prosecutor responded, “If that is what I said, it’s not what I meant anyway. . . . [Y]ou
should use your common sense and critical thinking when you are evaluating and looking
at all items of evidence, okay. Use your common sense.” Defense counsel did not object
or request another admonition to the jury.
Prosecutors should not define reasonable doubt in terms that could be taken to
lower the People’s burden. (People v. Nguyen (1995) 40 Cal.App.4th 28, 36.) Here, the
prosecutor did not redefine reasonable doubt. In fact, the prosecutor made no reference
to reasonable doubt, or burdens of proof, when he advised the jurors to use their common
sense. Thus, his comments did not suggest the jury assess the evidence using a lower
burden of proof, and defendant’s argument that the prosecutor redefined reasonable doubt
is simply not supported by the record and incorrect.
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Because the issue is forfeited, we need not consider defendant’s claim of a due
process violation resulting from the prosecutor’s remarks. Nonetheless, we note that the
prosecution showed the jurors a slide with the proper jury instruction for reasonable
doubt, and the trial court correctly instructed the jury on the definition of reasonable
doubt and reminded the jury it should take the law from the court's instructions, not from
remarks of counsel. We presume the jury heeded those instructions. (People v. Holt
(1997) 15 Cal.4th 619, 662.)
III
Senate Bill 136
Defendant correctly asserts, and the People concede, that recently enacted Senate
Bill 136, which limits the prior offenses that qualify for a prior prison term enhancement,
applies retroactively to his case.
On October 8, 2019, the Governor signed Senate Bill 136, which amended section
667.5, effective January 1, 2020. (Stats. 2019, ch. 590, § 1.) Senate Bill 136 narrowed
eligibility for the one-year prior prison term enhancement to those who have served a
prior prison sentence for a sexually violent offense.
Defendant’s prior prison term at issue was not for a sexually violent offense.
Defendant is therefore entitled to the ameliorative benefit of the statute if Senate Bill 136
is applied retroactively. We agree with the parties that the amendment to Senate Bill 136
should be applied retroactively in this case.
Whether a particular statute is intended to apply retroactively is a matter of
statutory interpretation. (See People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 307
[noting “the role of a court is to determine the intent of the Legislature”].) Generally
speaking, new criminal legislation is presumed to apply prospectively unless the statute
expressly declares a contrary intent. (§ 3.) However, where the Legislature has reduced
punishment for criminal conduct, an inference arises under In re Estrada (1965)
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63 Cal.2d 740, “ ‘that, in the absence of contrary indications, a legislative body ordinarily
intends for ameliorative changes to the criminal law to extend as broadly as possible,
distinguishing only as necessary between sentences that are final and sentences that are
not.’ [Citations.]” (Lara, at p. 308.) “A new law mitigates or lessens punishment when
it either mandates reduction of a sentence or grants a trial court the discretion to do so.
[Citation.]” (People v. Hurlic (2018) 25 Cal.App.5th 50, 56.)
Senate Bill 136 narrowed who was eligible for a section 667.5, subdivision (b)
prior prison term enhancement. There is nothing in the bill or its associated legislative
history that indicates an intent that the court not apply this amendment to all individuals
whose sentences are not yet final. Under these circumstances, we find that In re
Estrada’s inference of retroactive application applies. (Accord, People v. Lopez (2019)
42 Cal.App.5th 337, 340-342 [Senate Bill 136 applies retroactively to cases not yet final
on appeal]; People v. Jennings (2019) 42 Cal.App.5th 664, 680-682 [same].)
Accordingly, we will direct the trial court to strike defendant’s prior prison term
enhancement and “remand the matter for resentencing to allow the court to exercise its
sentencing discretion in light of the changed circumstances.” (Jennings, at p. 682.)
IV
Ability to Pay
Finally, defendant contends that he was denied his Sixth Amendment right to
counsel due to his counsel’s failure to object to the trial court’s imposition of fines, fees,
and assessments without first determining defendant’s ability to pay. Defendant’s
argument relies on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), which held
that “due process of law requires the trial court to conduct an ability to pay hearing and
ascertain a defendant’s present ability to pay before it imposes court facilities and court
operations assessments under Penal Code section 1465.8 and Government Code section
70373.” (Id. at p. 1164.) The Dueñas court also held “that although Penal Code section
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1202.4 bars consideration of a defendant’s ability to pay unless the judge is considering
increasing the fee over the statutory minimum, the execution of any restitution fine
imposed under this statute must be stayed unless and until the trial court holds an ability
to pay hearing and concludes that the defendant has the present ability to pay the
restitution fine.” (Ibid.)
We need not resolve the question of effective assistance of counsel because we
conclude this claim lacks merit. Defendant’s claim hinges on the Dueñas analysis
finding due process principles mandate an ability to pay hearing before imposing fines
and fees. We do not agree with the holding in Dueñas. Our Supreme Court will soon
resolve this question, having granted review in People v. Kopp (2019) 38 Cal.App.5th 47,
review granted November 13, 2019, S257844, which agreed with the court’s conclusion
in Dueñas that due process requires the trial court to conduct an ability to pay hearing and
ascertain a defendant’s ability to pay before it imposes court facilities and court
operations assessments under Penal Code section 1465.8 and Government Code section
70373, but not restitution fines under Penal Code section 1202.4. (Kopp, at pp. 95-96,
review granted.)
In the meantime, we join several other courts in concluding that the principles of
due process do not require determination of a defendant’s present ability to pay before
imposing the fines and fees at issue in Dueñas and in this proceeding. (People v. Cota
(2020) 45 Cal.App.5th 786, 794-795; People v. Kingston (2019) 41 Cal.App.5th 272,
279; People v. Hicks (2019) 40 Cal.App.5th 320, 329, review granted Nov. 26, 2019,
S258946; People v. Aviles (2019) 39 Cal.App.5th 1055, 1069; People v. Caceres (2019)
39 Cal.App.5th 917, 928.)
However, as the People note, the abstract of judgment contains two clerical errors
reflecting a discrepancy between the fines and fees imposed at sentencing and those
transcribed onto the abstract of judgment. At the sentencing hearing, the trial court
imposed a $300 state restitution fine (Pen. Code, § 1202.4, subd. (b)), a $40 court
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operations assessment (Pen. Code, § 1465.8), a $30 court facilities assessment (Gov.
Code, § 70373), a $10 crime prevention program fee (Pen. Code, § 1202.5), and a
$2,082.46 victim restitution fine (Pen. Code, § 1202.4). Yet the abstract of judgment
incorrectly states that the trial court imposed a $30 (rather than $40) court operations
assessment and does not include the imposed $30 court facilities assessment. We will
direct the trial court to correct the abstract of judgment to reflect the orally imposed fines
and fees. (See People v. Mitchell (2001) 26 Cal.4th 181, 187 [appellate courts may order
correction of clerical errors in abstract of judgment first raised by Attorney General].)
DISPOSITION
This matter is remanded to the trial court to strike the prison prior, resentence
defendant, and correct the clerical errors in the abstract of judgment. The judgment is
otherwise affirmed. The trial court is directed to forward the new abstract of judgment to
the Department of Corrections and Rehabilitation.
HULL, Acting P. J.
We concur:
DUARTE, J.
RENNER, J.
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