People v. Acuna CA2/4

Filed 5/13/22 P. v. Acuna CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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 This opinion has not been certified for publication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

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, B312393
(Los Angeles County
Plaintiff and Respondent, Super. Ct. No. VA104941)

v.

BENITO ACUNA,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles
County, Lee W. Tsao, Judge. Affirmed.
Laini Millar Melnick, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Susan Sullivan Pithey, Assistant Attorney General,
Noah P. Hill, Supervising Deputy Attorney General, and Scott A.
Taryle, Deputy Attorney General, for Plaintiff and Respondent.
 This appeal is limited to one issue: whether the trial court abused
its discretion by denying defendant and appellant Benito Acuna’s
motion to dismiss a firearm enhancement (Pen. Code, § 12022.53, subd.
(d))1 on remand from a prior appeal. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND
In 2009, a jury convicted defendant of first degree murder (§ 187,
subd. (a)) and felon in possession of a firearm (former § 12021, subd.
(a)(1)). The jury also found that the crimes were gang related (§ 186.22,
subd. (b)), and that defendant personally used a firearm in the
commission of the murder (§ 12022.53, subds. (b)-(d)). Defendant was
sentenced to an overall term of 50 years to life, including a term of 25
years to life for first degree murder, and a consecutive term of 25 years
to life for the firearm enhancement under section 12022.53, subdivision
(d). The court imposed and stayed a sentence (of an undefined term)
under section 654 for felon in possession of a firearm.
As set forth in our opinion in defendant’s first appeal, People v.
Acuna (June 15, 2011, B223744) [nonpub. opn.]) (Acuna I), the evidence
underlying the convictions showed that on February 24, 2008, a
carwash to raise money for the funeral of a slain member of the Varrio
Hawaiian Gardens (VHG) gang was held in the parking lot of Jim’s
Burgers in Hawaiian Gardens. Jeffrey Martinez, who had no gang
affiliation, had driven his father to Jim’s Burgers to get something to

1 Undesignated statutory references are to the Penal Code.

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eat. On their way out, they got into a fight with members of the VHG
gang who were at the car wash, and Martinez was fatally shot six times
in the back, all from the same gun. (Acuna I, supra, at p. 1.)
The principal prosecution witness at trial was a 16-year-old boy
who had witnessed the shooting while washing a car. The boy
identified defendant as the person he saw leave the fight, take a gun
from under some towels, put it in his pocket, go back to the fight, punch
Martinez, and draw the gun. At that point, the boy hit the ground and
heard gunshots. (Acuna I, supra, at p. 1.)
Defendant and his 15-year-old son Benito (also referred to as
Junior) were arrested on March 19, 2008. Junior initially denied being
at the car wash at the time of the shooting, but later admitted being
there, hearing shots, and seeing his father running toward him with a
gun. He stated that, at his father’s behest, he hid the gun at their
apartment building. Later his grandmother drove him and defendant
to a ditch, where unbeknownst to his grandmother, defendant disposed
of the gun.2 At trial, Junior recanted the statements, claiming they
were prompted by psychological coercion by the investigating detectives.
A recording of Junior’s statements was played to the jury. (Acuna I,
supra, at p. 1.)
In Acuna I, this court affirmed defendant’s judgment in part,
conditionally reversed in part, and remanded the matter to the trial
court to conduct a new in-camera hearing under Pitchess v. Superior

2 Junior pled guilty to being an accessory to murder in June 2009.
(Acuna I, supra, at p. 1, fn. 3.)

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Court (1974) 11 Cal.3d 531 (Pitchess). Following a Pitchess hearing on
remand, defendant filed his second appeal in People v. Acuna (Apr. 2,
2018, B279515) [nonpub. opn.] (Acuna II). In that appeal, we remanded
the matter again to hold another Pitchess hearing. We also directed the
trial court to consider its newly-enacted discretion to strike the firearm
enhancements (§ 12022.53, subds. (b), (d)) under Senate Bill No. 620
(2017-2018 Reg. Sess.). (Id. at p. 1.)
On remand, and at another Pitchess hearing, the trial court found
no discoverable records (a ruling not in issue in the current appeal).
Defendant also filed a written motion to strike his section 12022.53,
subdivision (d) enhancement.
In his motion, defendant referenced Special Directive 20-08.2
issued by Los Angeles District Attorney George Gascón.3 Defendant’s
motion also attached a declaration from an attorney who had previously
represented defendant in federal habeas proceedings.
In his declaration, habeas counsel stated that when defendant was
first incarcerated, he received an inmate classification score of 57.4

3 Los Angeles District Attorney George Gascón issued Special Directive
20-08.2 on December 18, 2020. The directive provided that firearm
allegations under section 12022.53 “shall not be filed, will not be used for
sentencing, and will be dismissed or withdrawn from the charging
document.” (L.A. County District Attorney Gascón, Special Directive 20-08.2
(Dec. 18, 2020) (Special Directive)
https://da.lacounty.gov/sites/default/files/policies/SD-20-08-2.pdf [as of May
12, 2022] p. 1.)

4 Habeas counsel explained that the inmate score used by the California
Department of Corrections and Rehabilitation determines the facilities in
which inmates are incarcerated, and the privileges to which they are entitled.

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Defendant’s inmate score declined, and as of April 2019, his inmate
score was 21. Habeas counsel estimated that defendant’s current
inmate score (as of March 2021) was 19—the minimum score for an
inmate sentenced to a minimum term of life imprisonment, and one
reflecting an inmate with “a very low security risk.” (Quoting In re
Stoneroad (2013) 215 Cal.App.4th 596, 605.) Defendant had received
“the best possible score of 1 ‘Lowest’ on the [California Static Risk
Assessment (CSRA),] and he also has superlative rankings on the
Correctional Offender Management Profiling of Alternative Sanctions
(COMPAS) system. . . . Based on his history and characteristics, the
CSRA places [defendant] at ‘low risk’ for reoffending or [of] posing a
danger to others.”5 Defendant had a history of laudatory conduct, and
was actively participating in educational and community-based
programs. Habeas counsel had “found records of only two disciplinary
infractions” in defendant’s correctional file: a 2016 positive drug test for
morphine without adequate excuse; and a 2012 fistfight resulting in
minor abrasions to those involved.
At the hearing on defendant’s motion to strike, the court stated
that it was aware of its “discretion under [section] 1385 and pursuant to

An initial score is calculated based on the crimes of conviction, criminal
history, and length of sentence. Over time, points may be added for
disciplinary infractions, and may be deducted for satisfactory behavior.

5 Habeas counsel stated that the CSRA considers 22 objective
criminogenic risk factors to predict an offender’s likelihood of conviction upon
release.

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SB 1393 [sic] to strike one or more gun enhancements and to impose a
lesser term.” The court summarized defendant’s post-conviction
conduct and criminal history, which included “four sustained theft-
related petitions as a juvenile and adult convictions for carrying a
loaded firearm, possession of a controlled substance, and possession of a
controlled substance for sale. [¶] He had no prior convictions for
violence or any prior state prison commitments.” The court also noted
that defendant continued to deny any involvement in the murder,6 and
despite claiming he had stopped associating with a gang in the mid-
1990’s, the jury in this case found the gang enhancement to be true.
The court then stated that it had gleaned “[t]he facts of the case” from
our prior decision in Acuna I.7
Defense counsel argued that if defendant were charged today
under the District Attorney’s Special Directive, he would be subject to
an indeterminate term of 25 years to life for murder, as the directive

6 When the court inquired of defense counsel whether defendant still
denied involvement in the murder, counsel replied that defendant “still
adheres to the noninvolvement in the shooting, and that is the quandary that
the defense is now facing pursuant to [section] 1385. We cannot show
remorse or acknowledgment because he is saying he didn’t do it.”

7 The Attorney General has requested that we take judicial notice of the
prior appellate record in Acuna I. In so requesting, he asserts the prior
appellate record sheds light on the “facts and circumstances of [the] murder,
on which the trial court relied in denying [defendant’s] motion.” Defendant
contends, and we agree, that the trial court on remand did not rely on the
prior appellate record; instead, the court relied on the facts as stated in our
opinion in Acuna I. We therefore deny the Attorney General’s request for
judicial notice.

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prohibited the prosecutor from pursuing additional punishment based
on section 12022.53. In light of that directive, defendant’s post-
conviction conduct, and family support, defense counsel requested that
the court strike the section 12022.53, subdivision (d) enhancement, or
impose a lesser enhancement under section 12022.5, subdivisions (b) or
(c). Addressing the court personally, defendant stated that he was
remorseful; and despite receiving certifications of rehabilitation for
victim impact and awareness and relapse prevention, he intended to
participate in future programs.8
The prosecutor responded that while the Special Directive
prohibited him from “ask[ing] for the 12022.53 to be imposed,” he would
not join in defendant’s arguments seeking to dismiss the enhancement.
The prosecutor then identified various aggravating factors, including
defendant’s prior criminal record, that in the murder he shot a
“completely innocent” victim six times in the back, and that he had used
his minor son to help dispose the murder weapon. He also clarified that
under his office’s current policy, it was probable the prosecution would
seek additional punishment for personal use of a firearm under section
12022.5 instead of section 12022.53.

8 Defendant’s family also addressed the court. Junior discussed how the
judicial process constituted “a system that hurt a family; a system that also
hurt an innocent defendant; a system that couldn’t live up to accountability
and its worth and not a reasonable factor of justice that has been served.”
Defendant’s wife stated that her family had endured 13 years of hardship
since her son and husband, each of whom was innocent, were taken away.

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 In ruling, the court acknowledged that defendant “has made some
steps towards [rehabilitation], in that direction. . . . However, I find
that the circumstances of the offense outweigh the mitigating factors,
and that it would not be in the interest of justice for this court to modify
the sentence that was imposed by the trial court.” The court declined to
strike the enhancement or reduce the sentence imposed on the
enhancement.

DISCUSSION
Defendant contends that the trial court abused its discretion by
denying his motion to strike the firearm enhancement. We disagree.
Under section 12022.53, subdivision (d), a defendant “convicted of
a qualifying felony who intentionally and personally discharges a
firearm, proximately causing great bodily injury or death, is subject to
an additional term of 25 years to life.” (People v. Garcia (2002) 28
Cal.4th 1166, 1169.) As enacted by Senate Bill No. 620 (2017-2018 Reg.
Sess.), and effective January 1, 2018, section 12022.53, subdivision (h),
gives the trial court discretion “in the interest of justice pursuant to
Section 1385 and at the time of sentencing, [to] strike or dismiss an
enhancement otherwise required to be imposed by this section. The
authority provided by this subdivision applies to any resentencing that
may occur pursuant to any other law.” (People v. Pearson (2019) 38
Cal.App.5th 112, 116 (Pearson); see § 1385, subds. (a)-(b) [“the judge . . .
may, . . . in furtherance of justice” strike or dismiss an enhancement, or
“may instead strike the additional punishment for that enhancement”].)

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 When determining whether to strike a firearm enhancement
under section 12022.53, subdivision (h), the trial court must consider
the same factors it uses when handing down a sentence, including
California Rules of Court, rules 4.410 (general objectives in sentencing),
4.421 and 4.423 (circumstances in aggravation and mitigation), and
4.428 (factors affecting imposition of enhancements). (Pearson, supra,
38 Cal.App.5th at p. 117.) These factors “will be deemed to have been
considered [by the court] unless the record affirmatively reflects
otherwise.” (Cal. Rules of Court, rule 4.409.)
“A court’s discretionary decision to dismiss or to strike a
sentencing allegation under section 1385 is” reviewable for abuse of
discretion. (People v. Superior Court (Romero) 13 Cal.4th 497, 531.) “In
reviewing for abuse of discretion, we are guided by two fundamental
precepts. First, ‘“[t]he burden is on the party attacking the sentence to
clearly show that the sentencing decision was irrational or arbitrary.
[Citation.] In the absence of such a showing, the trial court is presumed
to have acted to achieve legitimate sentencing objectives, and its
discretionary determination to impose a particular sentence will not be
set aside on review.”’ [Citations.] Second, a ‘“decision will not be
reversed merely because reasonable people might disagree. ‘An
appellate tribunal is neither authorized nor warranted in substituting
its judgment for the judgment of the trial judge.’”’ [Citations.]” (People
v. Carmony (2004) 33 Cal.4th 367, 376–377.) Thus, “a trial court does
not abuse its discretion unless its decision is so irrational or arbitrary
that no reasonable person could agree with it.” (Id. at p. 377.)

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 On this record, the trial court did not abuse its discretion in
declining to strike the section 12022.53, subdivision (d) enhancement.
The following aggravating factors are demonstrated by the evidence:
defendant personally used a firearm during the commission of murder;
the murder involved great violence and bodily harm; and defendant
enlisted his mother and minor son to dispose of the murder weapon.
(See Cal. Rules of Court, rules 4.421(a)(1)-(2), 4.421(a)(4)-(6),
4.421(a)(8), 4.421(c).) That defendant continues to deny involvement in
the murder is also a relevant factor supporting imposition of the firearm
enhancement. (See id., rules 4.421(c), 4.423(b)(3), 4.423(c).)
Defendant raises several arguments in support of his contention
that the court’s refusal to strike the enhancement constituted an abuse
of discretion. We address each in turn.
Defendant first asserts that his post-conviction conduct, criminal
record, and family support present “a strong case for relief from the
enhancement imposing an additional term of 25 years to life.” (See
People v. Yanaga (2020) 58 Cal.App.5th 619, 627 [on remand for
resentencing, a court may consider a defendant’s “postsentencing
behavior in prison” as a sentencing factor under California Rules of
Court, rules 4.421(c) and 4.423(c)].) The trial court, however,
considered these factors. That the court did not find them weighty
enough to strike the enhancement does not establish an abuse of
discretion.9

9 The trial court’s full consideration of defendant’s post-conviction
conduct makes this case factually distinguishable from In re Young (2012)
204 Cal.App.4th 288, on which defendant relies. (See id. at p. 304 [Board of

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 Defendant next asserts that “nothing in the record” demonstrates
that the court considered defendant’s base term of imprisonment (25
years to life for murder) when ruling on his motion to strike. (See Cal.
Rules of Court, rules 4.410(a)(2), 4.428(b) [courts may consider the
effect of striking the enhancement on any relevant consideration].)
However, to suggest that the trial court was somehow unaware of the
sentence that would result if the enhancement were stricken is
unsupported by the record. Indeed, it was the whole point of the
motion: defense counsel argued that under the current District
Attorney’s policy, defendant would not be subject to an enhancement
under section 12022.53, but would nevertheless face a lengthy,
indeterminate term of imprisonment for murder. In any event, the
relevant sentencing factors “will be deemed to have been considered
unless the record affirmatively reflects otherwise”. (Cal. Rules of Court,
rule 4.409.)
Finally, defendant asserts that both the interest of justice and the
legislative purpose underlying Senate Bill No. 620 require striking his
firearm enhancement. The Attorney General contends, and we agree,

Parole Hearings “ignored numerous suitability factors and evidence that
were directly relevant to an evaluation of his current dangerousness”].)
Moreover, the suggestion by defendant that In re Young stands for the
proposition that the aggravated nature of the murder cannot in and of itself
support imposition of sentence on the firearm enhancement is also incorrect.
The discussion in In re Young did not address section 12022.53 or Senate Bill
No. 620 specifically, or the sentencing law more generally. The court’s
discussion was limited to a different “body of statutes and regulations”
pertaining to an inmate’s eligibility for parole. (See id. at p. 301.)

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that because defendant never raised this argument in the trial court, he
has forfeited the contention on appeal. The forfeiture doctrine applies
“to claims involving the trial court’s failure to properly make or
articulate its discretionary sentencing choices. Included in this
category are cases in which . . . the court purportedly erred because it
double-counted a particular sentencing factor, misweighed the various
factors, or failed to state any reasons or give a sufficient number of valid
reasons.” (People v. Scott (1994) 9 Cal.4th 331, 353.) Even considering
the argument on the merits,10 we find it unpersuasive.
The term “in furtherance of justice” within section 1385 has been
viewed by the Supreme Court as “amorphous” and indeterminate.
(People v. Williams (1998) 17 Cal.4th 148, 159 (Williams).) The absence
of a statutory definition of this expression has led to a “body of useful
precedent which gives form to the above concept. [¶] From the case
law, several general principles emerge. Paramount among them is the
rule ‘. . . requir[ing] consideration both of the constitutional rights of the
defendant, and the interests of society represented by the People, in
determining whether there should be a dismissal.’ At the very least,
the reason for dismissal must be ‘that which would motivate a
reasonable judge.’” (People v. Orinda (1975) 13 Cal.3d 937, 945,
citations omitted.) In adherence to these principles, the determination

10 Though we consider defendant’s argument on the merits, we do not
address his use of the Special Directive. Defendant has never purported to
establish any legal basis in which special directives or policies from a local
prosecutor carry the force of law, or how those directives implicate a legal
basis for relief.

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whether to strike a prior conviction allegation or finding “in furtherance
of justice” requires consideration “whether, in light of the nature and
circumstances of [the defendant’s] present felonies and prior . . . felony
convictions, and the particulars of his background, character, and
prospects, the defendant may be deemed outside the scheme’s spirit.”
(Williams, supra, at p. 161; see People v. McGlothin (1998) 67
Cal.App.4th 468, 474 [“the court must also be mindful of the sentencing
scheme within which it exercises its authority”].)
Defendant contends that striking his firearm enhancement would
be consistent with the spirit of Senate Bill No. 620, which he asserts
was designed to ameliorate racial disparities in prison populations and
overcrowding, and to better reflect academic findings concluding that
there is no correlation between increasing a criminal sentence and
deterring future criminality.
However, by providing courts with the direction to strike a firearm
enhancement “‘to a deserving defendant, while a defendant who merited
additional punishment’ would still receive it,” the legislative history of
Senate Bill No. 620 “reflects a legislative intent to retain the core
characteristics of the sentencing scheme. More severe terms of
imprisonment with the harshest applicable sentence remained the
default punishment.” (People v. Tirado (2022) 12 Cal.5th 688, 701–702;
accord, Sen. Rules Com., Off. of Sen. Floor Analyses, Rep. on Sen. Bill
No. 620 (2017-2018 Reg. Sess.) as amended June 15, 2017, p. 3 [“A
defendant who merits additional punishment for the use of a firearm in
the commission of a felony would receive it. SB 620 allows a court to
decide whether or not to extend the sentence if a specific case indicates

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that it would be appropriate to do so”].) We find no abuse of discretion
in the trial court’s determination that defendant merits the additional
punishment imposed by section 12022.53, subdivision (d).

DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WILLHITE, J.
We concur:

MANELLA, P. J.

COLLINS, J.

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