P. v. >Leon>























Filed 3/21/13 P. v. Leon 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NOT TO BE PUBLISHED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opinion has not been certified for publication or ordered published for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

(Yuba)

----






>

THE PEOPLE, Plaintiff and Respondent, v. BENNY LEON, JR., Defendant and Appellant.

C071886 (Super. Ct. No. CRF03-243)

After the
United States Court of Appeals for the Ninth Circuit ruled that defendant Benny
Leon, Jr.’s, 11-year upper term state prison sentence for href="http://www.fearnotlaw.com/">voluntary manslaughter had resulted from
prejudicial Blakely error (>Blakely v. Washington (2004)
542 U.S. 296 [159 L.Ed.2d 403]), the trial court modified the
sentence from 11 years to the middle term of six years. We concluded the trial court erred in
believing the federal courts had curtailed its discretion to reimpose an upper
term, and remanded for resentencing. On
remand, the trial court imposed the upper term of 11 years. Defendant appeals, contending the trial court
abused its discretion because it relied upon reasons that are “legally
improper” and/or not supported by substantial
evidence. Defendant also contends
the court erred on resentencing in failing to calculate the total number of
days in custody. Only the latter
contention has merit. We shall remand
for this amendment and affirm as modified.

FACTUAL AND PROCEDURAL BACKGROUND

Our
statement of facts is taken from both our opinion in the direct appeal, case No. C047003
(People v. Leon (Aug. 11, 2005, C047003) [nonpub. opn.]), and our
prior opinion on resentencing, case No. C068005 (People v. Leon (Apr. 5,
2012, C068005) [nonpub. opn.]).


Defendant
and the victim, Rosalie Reyes, lived together in a Marysville apartment at the
time of the offense. On the evening of April 2, 2003, their acquaintance,
Antonio L., accompanied them to a home on Highway 113. While there, Antonio overheard Reyes tell
defendant something about money he had borrowed from her. Defendant left. Ten minutes later, defendant telephoned
Antonio and informed him that defendant would not be able to return to pick
them up because “some group of gangbangers confronted him about something.”

Approximately
40 minutes after defendant departed, Amber M. drove Antonio and Reyes back to
defendant’s apartment. The trio arrived
around 1:00 a.m., got out of the car
and approached the door. Reyes, who
apparently had no key, knocked on the apartment door but received no
answer. Reyes began “kicking, knocking,
cussing,” and yelling at the door. There
was still no answer, so Reyes moved to a window where she knocked and yelled
some more. Reyes then placed a call on
Amber’s cellular telephone. Antonio
heard a telephone ringing inside the apartment.
Amber overheard Reyes say into the phone “[o]pen the front door.” Then Reyes returned the phone to Amber. Antonio heard footsteps inside walking toward
the door.

Defendant
opened the door, looked outside, saw Amber and nodded at her. Defendant told Reyes to “[g]et the ‘F’ in
here” as if he were trying to hurry her.
He also said something to the effect she was making too much noise. As Reyes started into the apartment, defendant
nudged her into the doorjamb and a shot was fired.

Reyes
fell to the floor and defendant reached down to pick her up. Defendant told Reyes to get up and to stop
“playing around.” He was screaming and
hysterical and exclaimed that he had shot her.
While holding Reyes in his arms, defendant said, “[d]on’t die. I love you. I’ll change.”


Antonio
entered the house, grabbed a telephone and called 911. Then he picked up a handgun from the floor
and threw it over a fence. Police later
recovered the handgun.

The
bullet from the single gunshot struck Reyes in the neck and she died as a
result of the wound. The gun had been
fired from a distance of zero to six inches.
A firearms expert testified at trial that the weapon used by defendant
had a trigger pull of 11.5 to 12 pounds, whereas a typical firearm has a
trigger pull of three to seven pounds.
The handgun was in working order at the time.

A jury
acquitted defendant of first degree
murder while lying in wait (Pen. Code, §§ 187, 190.2, subd. (a)(15))href="#_ftn1" name="_ftnref1" title="">[1]
and second degree murder, convicted him of voluntary manslaughter (§ 192,
subd. (a)), and found that he used a firearm in the commission of the offense
(§ 12022.5, subd. (a)).

The
probation report listed three circumstances in aggravation. (Cal. Rules of Court, rule 4.421(a).)href="#_ftn2" name="_ftnref2" title="">[2] First, the “crime involved great violence and
a high degree of cruelty, viciousness, and callousness. The defendant shot the victim in her throat. The means of death was internal arterial
bleeding and asphyxiation. Additionally,
the victim did not initially die. The
victim had to suffer [through] drowning on her own blood for several
minutes.” (See rule 4.421(a)(1).)

Second,
the probation report stated the “victim was particularly vulnerable in that she
was attempting to enter the residence she shared with the defendant. The defendant exited a non-lit apartment,
while [the] victim attempted to enter from a lit porch.” (See rule 4.421(a)(3).)

Third,
the probation report stated the “manner in which the crime was carried out
indicates planning and sophistication.
The defendant waited several minutes inside the un-lit apartment, before
opening the door and shooting the victim, who was outside in a lighted
area. The defendant held the loaded
[.38-]caliber [semiautomatic] handgun to the victim’s neck and pulled the
trigger. The handgun was loaded with
hollow point ammunition, which is designed to cause the maximum amount of
damage to living tissue.” (See rule
4.421(a)(8).)

The trial
court (Judge Curry) sentenced defendant to state prison for the upper term of
11 years plus 10 years for firearm use.
In denying defendant probation, the trial court stated: “[Rule 4.]414(a)(3), [defense counsel] urges
that the victim was not vulnerable, that it was an unintentional act on the
Defendant’s part. The jury found no
evidence of planning or lying in wait, having acquitted him of first degree
[murder]. The People urge, in fact, >she was vulnerable, and Court believes that she was.
Given the basic facts that she is
standing in a small area outside the door of the apartment, >it is well lit, based on the believable evidence.
[Defendant] >is inside a dark apartment. Given
the time of day, this occurred without artificial light being on in the
apartment when he opened the door. >The victim is totally visible. He is
basically invisible because of the difference.” (Italics added.)

Thereafter,
the trial judge imposed the upper term of imprisonment, and adopted two of the
three suggested circumstances in aggravation, stating that “[t]he crime does
involve great violence, high degree of cruelty, viciousness and callousness”
and that the victim “was particularly vulnerable for all the reasons that I
stated as I was going through the [rule 4.]414 analysis.” The court added that the aggravating factors
greatly outweighed defendant’s lack of a prior record or any other mitigating
factor.

In his
direct appeal to this court (People v.
Leon, supra, C047003), defendant
claimed his sentence violated Blakely
because the upper term was improperly based on facts (violence, cruelty,
viciousness and callousness; and particular vulnerability) neither submitted to
the jury nor proved beyond a reasonable doubt.
Under compulsion of the then recent decision in Black I, we rejected the contention (People v. Black (2005) 35 Cal.4th 1238 (Black I), vacated sub nom.
Black v. California (2007)
549 U.S. 1190 [167 L.Ed.2d 36]; see People v. Black (2007) 41 Cal.4th 799 (Black II)).

After
defendant’s federal habeas petition was denied by the United States District
Court for the Eastern District of California, defendant appealed. The Ninth Circuit remanded the matter to the
federal district court with instructions to grant the petition for writ of
habeas corpus (Leon v. Kirkland (Nov.
17, 2010, No. 09-15696) [nonpub. opn.].)
In doing so, the Ninth Circuit concluded that “[t]he manner that the
victim was attacked in this case is analogous to being attacked from
behind. None of the characteristics that
California courts have used to support a finding of particular vulnerability
are present here.” The District Court
granted habeas relief, ordering that defendant be released from custody unless
the State of California elected to retry or resentence him.

At
resentencing, the sentencing court (Judge Smith) stated that he, like Judge Curry,
believed that the victim was particularly vulnerable, but “the Ninth Circuit
has said no. . . . [¶]
. . . And I’m of the opinion
that the District Court’s order granting the writ precludes this Court from
imposing the upper term for voluntary manslaughter. I think it’s justified, but I believe that
the order from the Federal District Court precludes this Court from imposing
the upper term. [¶] . . . Specifically, it reads ‘The trial court made
a sentencing error of constitutional magnitude when it imposed the upper term
for voluntary manslaughter.’ It doesn’t
say that the trial court erred in finding the victim particularly
vulnerable. If they had said that, I
think we’d have a different situation.
But what was said is it was constitutional error to impose the upper
term.” Judge Smith imposed the midterm
of six years on the voluntary manslaughter conviction, and the upper term of 10
years on the firearm enhancement.

The
People appealed, contending the trial court erred by failing to exercise its
discretion to select an appropriate term of imprisonment from the three
possible terms. We agreed, and remanded
the matter for resentencing. (>People v. Leon, supra, C068005.) In so
doing, we noted that “[o]n this record, the trial court could find callousness
in that, even if defendant was entitled to possess a loaded firearm in his home
as his counsel argued, defendant had sufficiently been put on notice—both by
the telephone call and by his observation of Reyes upon opening the door—that
the ‘gangbangers’ were not present and no reason for an armed conflict
existed. Escalating his and Reyes’s
prior argument about money into an armed confrontation at the doorstep
demonstrated an utter disregard for the safety and well-being of Reyes and her
companions. [¶] In People
v. Gutierrez (1992) 10 Cal.App.4th 1729 the appellate court found a
high degree of cruelty, viciousness, and callousness where the defendant
stalked and pursued his victims for several blocks while riding a
motorcycle. (Id. at pp. 1735-1736.)
The court noted this ‘expos[ed] the passengers, other drivers, and
pedestrians to the dangers of a traffic accident.’ (Ibid.) [¶]
Here, keeping a firearm at the ready after
receiving the telephone call and after
observing Reyes (as opposed to ‘gangbangers’) at the threshold exposed Reyes
and her companions to the dangers of a firearm incident even >before defendant evidently elected to
fire the weapon under circumstances constituting href="http://www.fearnotlaw.com/">voluntary manslaughter. The trial court could find that this showed
even less regard for the safety of Reyes and her companions than the defendant
had shown in Gutierrez. At resentencing, the trial court would be
entitled, albeit certainly not compelled, to find that the offense involved a
high degree of callousness.”

At
resentencing, defense counsel argued that the facts do not support a finding
that the crime involved a high degree of cruelty, viciousness and callousness
because “all the facts that could [otherwise have] justified that finding are
consumed and subsumed” by facts that constitute the offenses and “there are no
facts except the gravamen of the offense.”
The People urged the trial court to adopt Judge Smith’s reasoning,
including that Reyes was a particularly vulnerable victim.

The
sentencing court (Judge Scrogin) imposed the upper term on both the substantive
offense and the firearm enhancement.
“[I] am basing my imposition of the upper term of 11 years for the
voluntary manslaughter on the fact that according to [rule] 4.421(a)(1) I do
find the crime involved a high degree of callousness. Callousness, a feeling or showing of no
sympathy for others with a hardened heart, is the Webster’s definition. [¶]
Even if the defendant was entitled to possess this firearm in his house,
again his castle, the defendant had sufficiently been put on notice by the
telephone call. According to [the]
probation report, Rosalie Reyes came to the apartment complex with her friends
Amber [M.] and Antonio [L.] They walked
her to her apartment. No lights were on
in the residence and the door was locked.
The porch light was on from the front door. The door to the apartment had a peephole for
the occupants to look out. [Reyes]
banged on the door of the apartment and began yelling and cussing for the
defendant to open the door. [Reyes] uses
Amber [M.]’s cell phone to call the defendant inside the apartment. One witness stated they heard the phone ring
inside the apartment. Another witness
said they heard [Reyes] talking to someone on the cellular phone. [Reyes] waited outside the apartment for
approximately five minutes after initially arriving. Then the defendant opens the door and states
the quote that I previously referred to ‘You’re making too much noise. Get the F word in here.’ She steps into the apartment doorway. Antonio and Amber began to walk away. Then the defendant placed—then he shot her
with the .38. He had been significantly
put on notice both by the call and his own personal observation of [Reyes], the
victim, upon opening the door, that it was [Reyes] and not the gangbangers from
the gas station. There was no reason for
them to have an armed conflict over the argument about money that had occurred
45 minutes before. [¶] He escalated their argument about money to an
armed confrontation at the doorstep.
This demonstrated an utter disregard for the safety and well-being of
[Reyes] and her companions. This was
callousness.

“I am
making the finding that his conduct put everybody else at risk. It was foolish. It was hard-hearted. He had no reason to have a gun to open the
door for [Reyes]. It was obvious she
wasn’t a gangbanger. She just talked to
him on the phone. He was swearing at
her. He wasn’t swearing at the
gangbangers. This is the factor which
the Third District Court of Appeal has noted.
And the argument which the Third District Court of Appeal has already
stated could justify the upper term. [¶] I concur with the Third District Court of
Appeal. I have reviewed >People [v.] Gutierrez [(1992)
10 Cal.App.4th 1729] noted by the Third District Court of Appeal in their
opinion on this case where the appellate court found a high degree of
callousness. And I believe the >Gutierrez case is indistinguishable from
this case, and I am following it.”

DISCUSSION

I. Imposition of
the Upper Term for Voluntary Manslaughter

Defendant
first contends the trial court’s decision to impose the upper term for
voluntary manslaughter was an abuse of discretion.

He is
correct that we review a trial court’s decision to impose an upper term for an
abuse of discretion. (>People v. Sandoval (2007)
41 Cal.4th 825, 847.) We must
affirm unless there is a clear showing that the chosen sentence was arbitrary
or irrational. (People v. Hubbell (1980) 108 Cal.App.3d 253, 260.)

Voluntary
manslaughter is punishable by imprisonment for three, six, or 11 years.
(§ 193, subd. (a).) Rule 4.420(a)
requires the court to select the upper, middle, or lower term. Rule 4.420(b) states that in exercising its
discretion, the trial court may consider any aggravating or mitigating
circumstances. The trial court may
consider the case record, the probation
officer’s report, other specified reports, statements in aggravation and
mitigation, and other evidence introduced at the sentencing hearing. (Rule 4.420(b); § 1170.)

One of
the aggravating circumstances, and the one the trial court relied on here, is
that “[t]he crime involved great violence, great bodily harm, threat of great
bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or
callousness.” (Rule 4.421(a)(1).) The trial court is vested with broad
discretion in weighing the aggravating and mitigating factors, and a single
factor in aggravation will support imposition of the upper term. (Black
II, supra, 41 Cal.4th at
p. 813; People v. Steele (2000)
83 Cal.App.4th 212, 226.)

Defendant
claims that the trial court relied upon improper factors in imposing the upper
term sentence on his voluntary manslaughter conviction. First, he contends the court’s statement that
defendant “escalated their argument about money to an armed confrontation at
the doorstep” demonstrates the court shared the prosecutor’s view that
defendant “committed first degree murder,” notwithstanding that the jury rejected
theories that defendant had lain in wait or premeditated a murder, and
convicted him only of voluntary manslaughter.
Whatever the prosecutor’s view, the record does not suggest the trial
court shared it.

The
quoted language defendant finds objectionable derives from our prior opinion on
resentencing (People v. Leon, >supra, C068005), and we disagree that it
reflects a misunderstanding or refusal to accept the crime of which defendant
was convicted. Defendant need not have
premeditated a murder to have had his earlier disagreement with Reyes over
money contribute to his irritation with her making too much noise as she yelled
at him to open the door; his irritation is reflected in his cursing at her and
demand that she come into the house.
And, in any event, defendant’s carrying a weapon to the door after he
knew she was there waiting to be let in “demonstrated an utter disregard for
the safety and well-being of [Reyes] and her companions.” The trial court’s conclusion was neither
arbitrary nor irrational, and it did not abuse its discretion in so finding.

Nor did
the trial court abuse its discretion, as defendant urges, in finding that the
shooting was callous. Defendant’s
actions, i.e., keeping a firearm at the ready when he opened the door, represented
an utter disregard for the safety and well-being of Reyes and her companions,
because defendant knew Reyes—not “gangbangers”—was at the door: She had yelled to be let in; he had spoken to
her by cell phone; and he saw her when he opened the door, if not before
through the peephole. Callousness as an
aggravating factor can be established with evidence the defendant recklessly
“exposed [the victims] to danger.” (>People v. Gutierrez, supra,> 10 Cal.App.4th at
pp. 1735-1736.) Under the
circumstances, the trial court did not abuse its discretion in concluding
defendant acted without sympathy for others, and with a hardened heart.

II. Calculation
of Custody Credits

Defendant
also contends the trial court erred in failing at resentencing to calculate the
total number of actual days served in custody.
The People concede the error, and we agree. (People
v. Buckhalter (2001) 26 Cal.4th 20, 23 [“When, as here, an appellate
remand results in modification of a felony sentence during the term of
imprisonment, the trial court must calculate the actual time the defendant has already served and credit that time
against the ‘subsequent sentence.’ ”].)

The
August 13, 2012 abstract of judgment correctly reflects that defendant is
entitled only to conduct credit for time served in jail prior to his sentence,
i.e., 421 days of actual time and 63 days of conduct credit (pursuant to
§ 2933.1). But the abstract fails
to reflect that defendant is entitled to an additional 2,996 days of actual
custody credit for the time he served in prison between the initial sentencing
and the resentencing, for a total award of actual custody credit of 3,417
days—421 days of presentence actual custody credit plus 2,996 days of actual
custody credit for time spent in a state institution following the original
sentencing. The August 13, 2012
abstract of judgment must be amended accordingly.

DISPOSITION

The
matter is remanded to the trial court with instructions to amend the
August 13, 2012 abstract of judgment to reflect: Defendant is entitled to 3,417 days of actual
custody credit and 63 days of presentence conduct credit, for a total award of
custody credits of 3,480 days. As
modified, the judgment of conviction is affirmed. A certified copy of the amended abstract of
judgment shall be forwarded to the Department
of Corrections and Rehabilitation.





BUTZ , J.





We concur:





RAYE , P. J.





DUARTE , J.