People v. Aviles
39 Cal.App.5th 1055
| Cal. Ct. App. | 2019Background
- On May 16, 2013, defendant Luis Arrellanes Aviles fled officers, was found hiding in a bedroom closet, and opened fire; two officers were wounded. He was subdued after being shot by responding officers.
- Charges: two counts of attempted premeditated murder of peace officers (Pen. Code §§ 664/187(a)) with firearm enhancements (§ 12022.53(d)), and one count of being a felon in possession of a firearm (§ 29800(a)(1)). Jury convicted on all counts; found the §12022.53(d) firearm enhancements true; found the gang enhancement true only as to count 3 (felon-in-possession). Sentence aggregate 80 years to life plus 2 years from a separate plea for assault on a cellmate.
- Parties stipulated that the Norteños are a criminal street gang (Pen. Code §186.22(f)); gang expert testified generally about Norteño affiliation and how shooting officers benefits gang status; defense presented evidence of defendant’s intellectual deficits and a suicide-by-cop claim.
- Trial and sentencing issues: (a) sufficiency of evidence for the gang enhancement on count 3, including whether Prunty requires proof linking a specific subset to the larger gang; (b) whether the stipulation that defendant had a prior felony (element of count 3) was valid; (c) sentencing errors and remand issues (credit calculation, clerical errors on firearm code citations, discretion to strike §12022.53 enhancements, youth offender parole record); (d) constitutional challenge to restitution fines, fees, and assessments and reliance on People v. Dueñas.
- Disposition at appeal: convictions and most sentencing orders affirmed; the gang enhancement on count 3 reversed for insufficient evidence; remanded for limited sentencing corrections and for the trial court to consider recent discretionary relief on §12022.53 enhancements and to create a record for potential youth offender parole proceedings. All fines, fees, and assessments were affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence linking defendant’s East Side Delano subset to the larger Norteño gang (Prunty issue) | People: stipulation that "Norteños" are a gang plus expert testimony about informal associations of Norteño subsets sufficed to permit the jury to treat subsets as part of the larger Norteño gang. | Aviles: expert never tied the East Side Delano subset to the broader Norteños; under Prunty the People had to prove an organizational/associational connection. | Held: Prunty requirements met—stipulation plus expert testimony about inter-subset association provided substantial evidence of a connection. |
| Gang enhancement (§186.22(b)(1)) as to count 3—gang-related and specific intent prongs when defendant acted alone | People: expert testimony about gang benefits from weapons, location in Norteño area, defendant’s tattoos/attire and presence of Marquez supported inference that possessing the firearm benefitted the gang and showed specific intent. | Aviles: jury was instructed only on the "benefit" theory (not "in association with"); evidence was insufficient to show count 3 was committed for the benefit of the gang or that defendant had specific intent to promote gang criminality, particularly for a lone actor. | Held: Reversed the gang enhancement as to count 3—evidence insufficient to prove the "benefit" and specific intent prongs given the limited instruction and absence of proof defendant possessed the gun for gang-related purposes. |
| Validity of stipulation to prior felony conviction (element of count 3) | People: record shows defense counsel agreed repeatedly to stipulate the prior conviction; the stipulation was read into the record before the jury and the jury was instructed to accept it. | Aviles: counsel never clearly stipulated; later midtrial reduction under Prop 47 undercuts the stipulation. | Held: Stipulation was valid, knowing and intelligent; conviction for count 3 is supported. The later Prop 47 reduction did not negate that the prior was a felony at the time of the charged offense. |
| Constitutional challenge to imposition of restitution fines, fees, and assessments (Dueñas reliance) | Aviles: following People v. Dueñas, trial court must hold an ability-to-pay hearing before imposing assessments and must stay execution of restitution fines until proven ability to pay. | People: Dueñas was wrongly decided; constitutional challenge should be under the Eighth Amendment Excessive Fines Clause, not Dueñas’ due-process equal-protection framing; defendant forfeited ability-to-pay claim by not objecting, and on the merits the fines/assessments were not excessive. | Held: Majority rejects Dueñas’ due process rationale as wrongly decided and analyzes the claim under the Eighth Amendment; defendant forfeited any ability-to-pay objection by failing to object at sentencing; in any event the aggregate fines/assessments were not grossly disproportionate and are affirmed. |
Key Cases Cited
- People v. Prunty, 62 Cal.4th 59 (Cal. 2015) (proof required to treat gang subsets as a single criminal street gang)
- People v. Albillar, 51 Cal.4th 47 (Cal. 2010) (gang-expert testimony may support inferences about gang benefit; standard for reviewing sufficiency of evidence)
- People v. Frank S., 141 Cal.App.4th 1192 (Cal. Ct. App. 2006) (insufficient evidence to support gang enhancement for lone actor where expert opinion lacked underlying factual support)
- People v. Rios, 222 Cal.App.4th 542 (Cal. Ct. App. 2013) (specific intent prong insufficient for lone actor absent evidence of acting in concert or transporting firearms for gang use)
- People v. Dueñas, 30 Cal.App.5th 1157 (Cal. Ct. App. 2019) (held trial court must hold ability-to-pay hearing before imposing certain assessments and stay restitution fine pending proof of ability to pay)
- United States v. Bajakajian, 524 U.S. 321 (U.S. 1998) (Excessive Fines Clause proportionality factors)
- Timbs v. Indiana, 139 S. Ct. 682 (U.S. 2019) (Excessive Fines Clause incorporated against the states)