People v. Benavidez CA2/1 ( 2020 )

Filed 12/29/20 P. v. Benavidez CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B299027
Plaintiff and (Los Angeles County
Respondent, Super. Ct. Nos. VA147076,
VA148319)
v.
MICHAEL GREGORY
BENAVIDEZ,
Defendant and
Appellant.
APPEAL from judgments of the Superior Court of Los
Angeles County, Roger Ito, Judge. Affirmed in part, dismissed in
part.
Kevin Smith, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Steven D. Matthews and Gary A. Lieberman,
Deputy Attorneys General, for Plaintiff and Respondent.
____________________________
In Los Angeles Superior Court No. VA147076 (the 076
matter), a jury convicted Michael Gregory Benavidez of
possession of a controlled substance with a firearm (Health &
Saf. Code, § 11370.1, subd. (a)), possession of a firearm by a felon
(Pen. Code, § 29800, subd. (a)(1)), and unlawful possession of
ammunition (Pen. Code, § 30305, subd. (a)(1)) in March 2019.1 In
April 2019 in Los Angeles Superior Court No. VA148319 (the 319
matter), Benavidez pleaded no contest to making criminal threats
(§ 422, subd. (a)). Benavidez admitted that he had one prior
serious felony conviction (§§ 667, subd. (d), 1170.12, subd. (b)),
and that he had served one prior prison term (§ 667.5, subd. (b)).
Although Benavidez had a maximum combined exposure in the
two cases of more than 24 years, the People and Benavidez
agreed to an aggregate sentence of 10 years and four months for
both cases. The trial court sentenced Benavidez consistent with
the parties’ agreement.
Benavidez raises contentions here related to both cases.
Benavidez contends there is insufficient evidence to
support his convictions in the 076 matter because no evidence
exists that he was knowingly in possession of the handgun and
ammunition found in the garage where he was living. We
disagree and will affirm the trial court’s judgment in the 076
matter.
1 Further unspecified statutory references are to the Penal
Code.
2
Regarding his sentence in the 319 matter, Benavidez
contends that Senate Bill No. 136 requires us to strike the one
year enhancement imposed under section 667.5, subdivision (b)
based on Benavidez’s prior prison term. Because Benavidez did
not appeal from the trial court’s judgment in the 319 matter, we
do not reach Benavidez’s contentions, but rather dismiss the
appeal insofar as it relates to the 319 matter.
BACKGROUND
A. The 076 Matter—Methamphetamine, Firearms, and
Ammunition
The Los Angeles County Sheriff’s Department executed a
search warrant on the garage of a duplex in Hawaiian Gardens at
about 5:00 a.m. on February 21, 2018. Deputies escorted
Benavidez and his girlfriend from the garage and eight other
people from the duplex, which was separate from the garage.
Benavidez had methamphetamine in his pocket when he was
escorted from the garage.
The garage the deputies searched had a makeshift bed,
clothing, and two televisions, some video equipment and a
gaming system in it, and appeared as though it was being used as
a residence.2 Deputies also found a backpack that contained
more methamphetamine. During their search of the garage, one
of the deputies climbed onto a chair “exactly where it was in the
room” and found, positioned on a rafter “about seven feet, eight
feet off the ground,” a .9 millimeter firearm loaded with live
unfired ammunition and with a live unfired round in the
2 During an interview with deputies after his arrest,
Benavidez stated that he had been living in the garage for
approximately one to two weeks.
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firearm’s chamber. The deputy testified that as he stood on the
chair “exactly where it was in the room, the [firearm] handle was
closest to [him]. So if [he] were to reach up, [the firearm] was
perfectly within arm’s reach.” The deputy testified that if he
stood on the chair and turned 180 degrees away from the firearm,
“there was a plastic baggie” on another rafter that contained
unfired ammunition.
Both the firearm and the ammunition were “in plain sight”
as the deputy stood on the chair. The deputy testified that if one
were not standing on the chair, the firearm and ammunition on
top of the rafters would “more than likely not” have been visible.
When interviewed, Benavidez acknowledged that the
methamphetamine in his pocket was his and “that he uses meth.”
Benavidez initially denied that the firearm and
methamphetamine found inside the garage were his. When
asked if they belonged to his girlfriend, however, he replied that
“they didn’t belong to her, not to mess with her, that it belonged
to him.”
B. The 319 Matter—Criminal Threats
On July 4, 2018, Benavidez threatened to kill someone
visiting a neighboring apartment. During the interaction,
Benavidez raised his shirt to reveal a firearm in his waistband.
C. Procedural Background
On March 12, 2019, a jury convicted Benavidez of one count
of possession of a controlled substance with a firearm (Health &
Saf. Code, § 11370.1, subd. (a)), one count of possession of a
firearm by a felon (§ 29800, subd. (a)(1)), and one count of
unlawful possession of ammunition (§ 30305, subd. (a)(1)). For
purposes of the 076 matter, Benavidez admitted that he had
suffered a one-year prior conviction for purposes of section 667.5,
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subdivision (b), and had a prior serious felony conviction for
purposes of section 667, subdivision (d). On April 26, 2019,
Benavidez pleaded no contest in the 319 matter to a single count
of making criminal threats under section 422, subdivision (a).
Benavidez admitted again—for purposes of the 319 matter, that
he had suffered a prior serious felony conviction under section
667, subdivision (d) and a one-year prior conviction for purposes
of section 667, subdivision (b).
At the sentencing hearing, the trial court noted that the
parties had agreed to an aggregate sentence for Benavidez on
both cases of 10 years and four months. Sentence was imposed as
follows: “As to case number VA147076, defendant having been
convicted of multiple counts . . . the defendant agreed to a
disposition posttrial on that case which was four years on count
number 1, which is the principal count. That term is doubled
pursuant to [section] 1170(a) through (d), [section] 667 (b)
through (i) for eight years. [¶] Count number 3 on VA148319
that is a [section] 422(a), that is a subordinate count, one third
the mid of the [section] 422(a) is eight months. That term is
ordered doubled pursuant to [section] 1170(a) through (d), 667(b)
through (i). In addition and consecutive thereto, the defendant
having admitted to one of the [section] 667.5(b) priors, the total
term of imprisonment adds a one-year enhancement for—one-
year enhancement for a total on case VA148319 of two years, four
months.” The trial court continued: “As to count number 2 on
VA147076 the court will sentence the defendant to an additional
16 months which is to run concurrent. Count number 3 on
VA147076 the court will likewise sentence to an additional 16
months to run concurrent.”
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Benavidez filed a timely notice of appeal as to the 076
matter, but no notice of appeal as to the 319 matter.
DISCUSSION
1. The 076 Matter
Benavidez contends that the evidence presented at trial
was insufficient to support a conclusion that he had knowledge of
or control over the firearm and ammunition deputies found in the
garage where Benavidez was living on February 21, 2018.
Benavidez explains (and the People do not dispute) that each of
the crimes for which he was convicted in the 076 matter requires
that the defendant have knowledge of, possession of, control over,
or intent to possess the hidden firearm or ammunition. (See
People v. Bay (2019) 40 Cal.App.5th 126, 131-132 (Bay).)
Benavidez argues, however, that the only evidence in the record
that he had knowledge of, possession of, control over, or intent to
possess the firearm and ammunition found in his living space
was his confession to deputies after his arrest. Benavidez argues
that under the corpus delicti rule, the People cannot rely
exclusively on his confession to establish Benavidez’s knowledge,
possession, control, or intent.
When an appellant challenges the sufficiency of the
evidence to support a criminal conviction, “we review the whole
record in the light most favorable to the judgment to determine
whether it discloses substantial evidence—that is, evidence that
is reasonable, credible, and of solid value—from which a
reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt.” (People v. Stanley (1995) 10 Cal.4th 764, 792.)
“ ‘Substantial evidence includes circumstantial evidence and any
reasonable inferences drawn from that evidence.’ ” (People v.
Brooks (2017) 3 Cal.5th 1, 57.) Nevertheless, “California, like
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most American jurisdictions . . . adhere[s] to the rule that . . . the
. . . body of the crime[ ] cannot be proved by exclusive reliance on
the defendant’s extrajudicial statements.” (People v. Alvarez
(2002) 27 Cal.4th 1161, 1165 (Alvarez).) “Thus, . . . the corpus
delicti rule requires that a conviction be supported by some
evidence, which need only constitute ‘ “a slight or prima facie
showing” ’ [citation], but must be in addition to and beyond the
defendant’s untested inculpatory extrajudicial statements
[citation], that ‘someone committed a crime.’ [Citation.]” (People
v. Rivas (2013) 214 Cal.App.4th 1410, 1428, original italics.)
“The independent proof may be circumstantial and need not be
beyond a reasonable doubt, but is sufficient if it permits an
inference of criminal conduct, even if a noncriminal explanation
is also plausible.” (Alvarez, at p. 1171.)
“The firearm-and ammunition-possession offenses prohibit
a felon from ‘possess[ing]’ or having ‘under custody or control’ the
given item . . . and they are general-intent crimes that require
knowing possession of the prohibited item. [Citations.]
Possession may be actual or constructive. ‘ “A defendant has
actual possession when the weapon is in his [or her] immediate
possession or control,” ’ i.e., when he or she is actually holding or
touching it. [Citations.] ‘To establish constructive possession,
the prosecution must prove a defendant knowingly exercised a
right to control the prohibited item, either directly or through
another person.’ [Citations.] Although a defendant may share
possession with other people, ‘mere proximity’ or opportunity to
access the contraband, ‘standing alone, is not sufficient evidence
of possession.’ ” (Bay, supra, 40 Cal.App.5th at pp. 131-132.)
The “necessary quantum of independent evidence” to
satisfy the corpus delicti rule (Alvarez, supra, 27 Cal.4th at p.
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1171) is present here. A deputy stood on a chair “exactly where it
was in the room” to access the firearm, which was loaded and had
a round in the chamber. The deputy testified that “if [he] were to
reach up, [the firearm] was perfectly within arm’s reach.” The
jury could have inferred from that testimony that the garage’s
occupants knew about the weapon and had constructive control
over it. The position of the chair in the space coupled with the
location of the loaded handgun and live ammunition supports a
reasonable inference of more than mere proximity or opportunity.
Rather, the scenario allows the inference that the occupants of
the garage placed the weapon, ammunition, and means of access
where they did so that the weapon and ammunition could be
readily accessed and used. The evidence presented at trial is
sufficient to sustain Benavidez’s firearm- and ammunition-
possession convictions.
2. The 319 Matter
Benavidez filed a notice of appeal in the 076 matter, but no
notice of appeal in or referencing the 319 matter.
“Under statutory law, a defendant may generally take an
appeal from a judgment of conviction.” (People v. Mendez (1999)
19 Cal.4th 1084, 1094 (Mendez).) “Under decisional law, by
contrast, a defendant generally may not take an appeal from a
judgment of conviction entered on a plea of guilty or . . . nolo
contendere, except on grounds going to the legality of the
proceedings, including the validity of his plea.” (Ibid.)
“A timely notice of appeal, as a general matter, is ‘essential
to appellate jurisdiction.’ ” (Mendez, supra, 19 Cal.4th at p.
1094.) “An untimely notice of appeal is ‘wholly ineffectual: The
delay cannot be waived, it cannot be cured by nunc pro tunc
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order, and the appellate court has no power to give relief, but
must dismiss the appeal on motion or on its own motion.’ ” (Ibid.)
Citing In re Benoit (1973) 10 Cal.3d 72, Benavidez argues
that his notice of appeal in the 076 matter constituted a
constructive notice of appeal for the 319 matter. Benoit
concerned two petitions on habeas corpus for (1) a defendant who
repeatedly attempted to file a notice of appeal but “was thwarted
by circumstances beyond his control” (Benoit), and (2) a
defendant who asked appointed counsel to file a notice of appeal,
but whose counsel failed to timely do so (Wyckoff). (Id. at p. 89.)
The Supreme Court granted writ relief and deemed the late
notices of appeal as having been timely constructively filed.
Benoit was specifically about notices of appeal that had been
filed, but were untimely. The matter did not deal with cases in
which a defendant coincidentally had another matter pending at
the same time as another matter in which a notice of appeal had
been filed. Benoit has no application here.
As an alternative argument, Benavidez asks us to view the
two matters as one for purposes of the notice of appeal.
Benavidez argues that the 076 matter and the 319 matter “were
consolidated for sentencing.” “[T]here is one sentence and one
judgment,” Benavidez argues. And “[t]here can be no rational or
tactical reason to file a Notice of Appeal in one case, but not the
other.”
We disagree with Benavidez’s assertion. The record
contains no order consolidating the matters for any purpose.
There is a minute order transferring the 319 matter to the same
department as the 076 matter “for global disposition.” But the
record does not demonstrate that the cases were ever
consolidated or otherwise deemed related. Neither were they
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substantively related. One case dealt with a set of drug, firearm,
and ammunition charges based on a search of Benavidez’s home
on an early morning in February 2018. The other dealt with an
unrelated criminal threat Benavidez made in July 2018.
There is not merely one judgment encompassing the two
cases. “In a criminal case, the trial court’s oral pronouncement of
sentence constitutes the judgment.” (People v. Villatoro (2020) 44
Cal.App.5th 365, 369, italics omitted; People v. Karaman (1992) 4
Cal.4th 335, 344, fn. 9.) While the length of Benavidez’s sentence
was negotiated globally, the trial court treated the cases as
separate matters when it entered judgment; the trial court
carefully delineated case numbers, counts, and application of
enhancements when it sentenced Benavidez in each of the
matters. The trial court’s preparation of a single abstract of
judgment identifying the sentences imposed in both cases does
not affect our analysis. (See Karaman, at p. 344 [abstract of
judgment is the “commitment document . . . remanding the
defendant to prison and ‘ “is the process and authority for
carrying the judgment and sentence into effect” ’ ”]; People v.
Mesa (1975) 14 Cal.3d 466, 471 [abstract of judgment is not the
judgment of conviction].)
Moreover, one rational reason for failing to file a notice of
appeal in the 319 matter is that the judgment was the result of a
plea agreement, and appeal rights from judgments based on
convictions after a plea agreement are limited. (See Mendez,
supra, 19 Cal.4th at p. 1094.) Benavidez does not argue, and the
record does not disclose, that any ground for appeal existed when
judgment in the 319 matter was entered or when it became final
60 days later. The one point of error Benavidez argues here is
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based on a statute—Senate Bill No. 136—that the Legislature did
not pass until after the judgment in the 319 matter was final.
The trial court entered judgment in both the 076 and 319
matters on June 6, 2019, and Benavidez filed his notice of appeal
in the 076 matter on the same day. Absent a notice of appeal, the
319 matter would have become final on August 5, 2019—60 days
after the trial court entered judgment. (Cal. Rules of Court, rule
8.308(a); People v. Smith (2015) 234 Cal.App.4th 1460, 1465.)
Senate Bill No. 136 was not signed into law until October 8, 2019,
and did not become effective until January 1, 2020. (People v.
Lopez (2019) 42 Cal.App.5th 337, 340-341.)
It is entirely reasonable and rational to not appeal a
judgment that is not appealable. And that Senate Bill No. 136
was enacted while an appeal in an unrelated matter was pending
does not render the notice of appeal in the unrelated matter
effective as to the other.
We are without jurisdiction to hear Benavidez’s challenge
to his sentence in the 319 matter. We dismiss the appeal insofar
as it relates to that matter.
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DISPOSITION
The judgment in Los Angeles Superior Court No. VA147076
is affirmed. The appeal is dismissed insofar as it relates to Los
Angeles Superior Court No. VA148319.
NOT TO BE PUBLISHED
CHANEY, J.
We concur:
ROTHSCHILD, P. J.
FEDERMAN, J.*
*Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
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