Opinion
A159652
06-29-2021
THE PEOPLE, Plaintiff and Respondent, v. MATTHEW JOHN CAPANIS, Defendant and Appellant.
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. 51319284
Kline, P.J.
Plaintiff Matthew John Capanis appeals from the resentencing by the Contra Costa County Superior Court after we remanded the case for that purpose. Capanis's court-appointed counsel has filed a brief raising no legal issues and requesting that this court conduct an independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436. Counsel advised Capanis he is filing a Wende brief in his case and that he may personally file a supplemental brief within 30 days of the filing of the Wende brief, raising any issues he wishes to call to the attention of the court. Capanis has not filed such a brief.
BACKGROUND
Our opinion in Capanis's initial appeal (People v. Capanis (Mar. 28, 2019, A151544) [nonpub. opn.] (Capanis I)), summarized the procedural background at that time as follows:
“On March 29, 2017, the Contra Costa County District Attorney filed a second amended information charging Capanis with the murder of [Ulises] Grijalva (Pen. Code, § 187, subd. (a)) (count 1). With respect to count 1, the information further alleged that Capanis committed the murder for the benefit of a criminal street gang (the Varrio North Side (VNS)\Norteños) (§ 186.22, subd. (b)(1)(C)), that Capanis personally and intentionally discharged a firearm causing great bodily injury or death (§ 12022.53, subd. (d)), and the special circumstance that Capanis committed the murder to further the activities of a criminal street gang (§ 190.2, subd. (a)(22)). Capanis was also charged with active participation in a criminal street gang (§ 186.22, subd. (a)) (count 2) and possession of a firearm by a felon (§ 29800, subd. (a)(1)) (count 3). The information alleged two prior prison terms pursuant to section 667.5, subdivision (b), and enhancements based on the 2007 robbery conviction pursuant to section 667.5, subdivision (a), and section 667, subdivisions (a)(1), (d), and (e).
Further unspecified references are to the Penal Code.
“On April 24, 2017, a jury found Capanis guilty of first-degree murder and of counts 2 and 3 as charged, and all the enhancements true, with the exception of the prior prison term and conviction allegations, which had been bifurcated and were found true by the court.
“On May 26, 2017, the trial court sentenced Capanis to life in state prison without the possibility of parole for the murder and special circumstance on count 1, with a consecutive term of 25 years to life for the firearm enhancement, and a further consecutive five-year term for the prior robbery conviction under section 667, subdivision (a)(1). On count 2, the trial court imposed a sentence of nine years, consisting of the midterm of four years plus a five-year enhancement under 667, subdivision (a)(1). On count 3, the trial court imposed a sentence of two years, doubled for the prior strike for a total of four years. The trial court then stayed the sentences on counts 2 and 3 under section 654, and struck the remaining enhancement terms.”
In our first opinion (Capanis I) we affirmed the judgment in most respects but held Capanis was entitled to remand under Senate Bill No. 620 (2017-2018 Reg. Sess.) to enable the trial court to exercise discretion to strike the firearm enhancement found true pursuant to section 12022.53, subdivision (d), and that remand was also appropriate pursuant to Senate Bill No. 1393 (2017 Reg. Sess.), so that the trial court could also exercise discretion to strike the five-year enhancements imposed under section 667, subdivision (a)(1).
After remand, the resentencing hearing was held on November 22, 2019. After reciting its tentative sentence and hearing from counsel, the court struck the five-year prior serious felony enhancements as to both the determinate and indeterminate sentences, but declined to strike the firearm enhancement pursuant to section 12022.53 and reimposed its sentence of 25 years to life.
The court also denied Capanis's request to strike or reduce the fines and fees it had imposed pursuant to People v. Duenas (2019) 30 Cal.App.5th 1157.
FACTUAL BACKGROUND
Our opinion in Capanis I, as modified by a subsequent order, summarized the facts regarding the first degree murder of which Capanis was convicted as follows:
“On the evening of August 5, 2012, Nestor Navarro was doing laundry and hanging out with a man nicknamed ‘Nuts,' 16-year-old Ulises Grijalva, and a third man at the St. John's Apartments in Richmond. Capanis, his girlfriend Maria, and Jacob Stephens arrived at the complex and went into Maria's apartment. Shortly afterward, Capanis and Stephens returned and approached Navarro and his group. Capanis got ‘right in [Grijalva's] face' and asked, ‘Do you know who I am?' Grijalva replied “Yes, I know who you are, ” and Capanis then said “Well, somebody broke into my house, and it fits your description.” Grijalva said he did not know what Capanis was talking about, and attempted to shake Capanis's hand. Capanis asked Grijalva ‘who he hangs around with,' and Grijalva replied ‘us,' meaning the group he was with. Capanis then drew a gun and fired four or five shots at Grijalva. Stephens also drew a gun with a laser sight and began shooting. Navarro ran away from the scene. In total, he heard 10 or 11 gunshots.
“Around 9:30 p.m. that night, Richmond Police Officer Alexander Caine was near the St. John's Apartments when he heard gunfire. He saw an individual, later identified as Stephens, exit one of the pedestrian gates of the complex clutching a metal object in his right hand that appeared to be a firearm. Stephens ran through a front yard where Officer Caine briefly lost sight of him, and when he reemerged he was no longer holding the firearm. Stephens ignored Officer Caine's orders to stop and Caine pursued him on foot, eventually tackling him and placing him under arrest. The police retrieved a silver revolver equipped with a laser sight from the spot where Caine briefly lost sight of Stephens.
“Grijalva's autopsy revealed a total of six bullet wounds, one of which was a re-entry wound. The cause of death was multiple gunshot wounds. Seven bullets were recovered, four from Grijalva's body and three from the scene. Forensic analysis indicated that two of those bullets, one from the body and one from the scene, were fired from the gun discarded by Stephens. The other five bullets, three from the body and two from the scene, were fired by a second gun.”
The evidence at trial also showed that on the day before the murder of Grijalva, Capanis and two other men kidnapped Jose Flores. Flores did not report the kidnapping at the time, but eventually spoke with detectives and identified Capanis as the gunman from a photo lineup.
Considerable evidence was also admitted that the murder, alleged kidnapping, and some of Capanis's past convictions were relevant to various gang allegations. Among other evidence, Casey Walsh, CDCR gang investigator testified about a report of an incident in which a kite was found in Capanis's anal cavity containing information regarding the Northern Structure prison gang, which was synonymous with the Norteño gang. Walsh also testified that Capanis had been seen assaulting an individual associated with the Sureño gang with the use of a security blanket, and that he observed a large “Huelga” bird tattoo on Capanis's lower back. When asked a hypothetical question about an individual involved in the “security blanket” incident, the assault of a Sureño, and the Huelga bird tattoo, Walsh opined that such an individual would be a member of the Northern Structure gang.
Sergeant Michael Kindorf, who also appeared as a gang expert for the prosecution, testified that Capanis's colleagues, Alonzo Hernandez, Mauro Gutierrez, and Jacob Stephens, who had committed violent offenses that were gang related, were also members of the Norteño gang.
DISCUSSION
As noted, Capanis was charged with a firearm enhancement under section 12022.53, subdivision (d) in connection with the murder, the jury found the firearm allegation true, and the trial court imposed the then mandatory sentence of 25 years to life consecutively to the balance of Capanis's sentence. Capanis argued, and the Attorney General conceded, that because his appeal was not final as of January 1, 2018, the amended section 12022.53 applies retroactively to his sentencing. Upon remand, Capanis's request to strike the firearm possession enhancement pursuant to section 12022.53 was denied. The issue before us now is whether the denial of that request, and reimposition by the court of its sentence of 25 years to life as to that enhancement, was arguably erroneous, and further briefing of that issue should therefore be required.
The November 22, 2019 resentencing hearing commenced with an explanation by the court of the reason it had tentatively decided to deny Capanis's request to strike the gun enhancement pursuant to section 12022.53, which the court referred to “as the elephant in the room” for the “purposes of this case.” The court stated it denied the request to strike the gun enhancement because “I do intend to strike the five-year enhancement that was imposed on the indeterminate part of the sentence but imposed and stayed on the determinate part of the sentence.” That is, the court denied Capanis's request and reimposed its indeterminate sentence of 25 years to life, apparently because of the effect of deciding “not to add the five years on either the indeterminate or determinate parts of the sentence.” The court stated at the resentencing hearing that the five-year prior serious felony enhancement was stricken “because of the age of the case.”
After learning of the reasoning employed by the court to justify its determination, defense counsel argued that the court should “reconsider striking the 25-to-life firearm enhancement” because Capanis “is serving a sentence of life without parole on the first degree murder with special circumstances and the facts of the case.”
The standard of review prohibits us from concluding that the court's ruling was even arguably erroneous.
A trial court's discretionary decision regarding whether to dismiss or to strike a sentencing allegation is reviewable for abuse of discretion (People v. Carmony (2004) 33 Cal.4th 367, 373-375), and “ ‘ “[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary.”' ” (Id. at p. 376.) 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.]” (Id. at p. 377.)
“In addition to the factors expressly listed for determining whether to strike enhancements listed in California Rules of Court, rule 428(b), the trial court is also to consider the factors listed in... rule 4.410 (listing general objectives in sentencing), as well as circumstances in aggravation and mitigation under... rules 4.421 and 4.423.” (People v. Pearson (2019) 38 Cal.App.5th 112, 117.) Among other factors the court may have considered were that “ ‘[t]he crime involved great violence, great bodily harm..., or other acts disclosing a high degree of cruelty, viciousness, or callousness' ”; that “ ‘[t]he defendant was armed with or used a weapon at the time of the commission of the crime' ”; and that “ ‘[t]he defendant has engaged in violent conduct that indicates a serious danger to society.' ” (Pearson, at p. 117; Cal. Rules of Court, rule 4.421(a)(1)-(2), (b)(1).)
Defense counsel's apparent contention that the striking of the 5-year enhancement is meaningless in the circumstances of imprisonment without the possibility of parole is unavailing. The Supreme Court has held that the enhancement of 25 years to life embodied in section 12022.53, subdivision (d) may be imposed notwithstanding the circumstance that the defendant's sentence for the underlying offense is life without the possibility of parole, so the enhancement would have no practical effect. (People v. Shabazz (2006) 38 Cal.4th 55, 70.)
Next, as we ordered, the court reduced the withdrawal rate of funds deducted from Capanis's monthly prison earnings from 60 percent to 50 percent.
Finally, the court denied defense counsel's request to strike or reduce the fines and fees it had imposed pursuant to People v. Duenas, supra, 30 Cal.App.5th 1157. The court did so “because given the circumstances of his incarceration, I think he's gonna have the ability to pay.” The court based this statement on an unidentified “line of cases that says the court can take into account in imposing a prison sentence on somebody the fact that they're going to be in prison for an extended period of time in assessing whether they have the ability to pay.” The court stated that at the time it initially imposed the fines and fees on Capanis it believed “the extended period of time he would be serving in prison would give him the ability to pay the restitution and fines and fees I was imposing.” Although the court did not cite them, People v. Aviles (2019) 39 Cal.App.5th 1055, 1076-1077 and People v. Johnson (2019) 35 Cal.App.5th 134, 139-140, exemplify the “line of cases” on which the trial court justifiably relied.
DISPOSITION
Our review of the record revealing no arguable legal issue, no further briefing is required. The resentencing orders of the court are affirmed.
We concur: Richman, J., Miller, J.