People v. Belloso

• Decision Date: 26 November 2019
• Docket Number: B290968
• Citation: 42 Cal.App.5th 647,255 Cal.Rptr.3d 640
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Juan Luis BELLOSO, Defendant and Appellant.

42 Cal.App.5th 647

255 Cal.Rptr.3d 640

The PEOPLE, Plaintiff and Respondent,

v.Juan Luis BELLOSO, Defendant and Appellant.

B290968

Court of Appeal, Second District, Division 7, California.

Filed November 26, 2019

Dawn S. Mortazavi, Irvine, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Scott A. Taryle and Viet H. Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.

FEUER, J.

Juan Luis Belloso appeals from a judgment entered after the jury convicted him of carrying a concealed dirk or dagger ( Pen. Code,¹ § 21310 ). Belloso contends there is insufficient evidence to establish his stainless steel knife with a four-inch fixed blade was a dirk or dagger. Belloso also contends the trial court violated his rights to due process and equal protection under the Fourteenth Amendment by failing to consider his ability to pay before imposing court assessments and restitution fines, relying on this court’s opinion in People v. Dueñas (2019) 30 Cal.App.5th 1157, 242 Cal.Rptr.3d 268 ( Dueñas ).²

We recognize there is a split in authority as to whether Dueñas was correctly decided. Although several Courts of Appeal have adopted our due process analysis, others have concluded Dueñas was wrongly decided or that an Eighth Amendment analysis under the excessive fines clause is doctrinally preferable. We find unpersuasive the analyses of the courts that have disagreed with Dueñas , as exemplified by the two most recent cases rejecting this court’s due process analysis, People v. Hicks (2019) 40 Cal.App.5th 320, 326, 253 Cal.Rptr.3d 116 ( Hicks ) and People v. Aviles (2019) 39 Cal.App.5th 1055, 1061, 252 Cal.Rptr.3d 727 ( Aviles ). The Supreme Court is now poised to resolve this split in authority, having granted review in People v. Kopp (2019) 38 Cal.App.5th 47, 95-96, 250 Cal.Rptr.3d 852 ( Kopp ), review granted November 13, 2019, S257844,³ which applied the Dueñas due process analysis to imposition of the court assessments and an Eighth Amendment analysis to the restitution fines. We reaffirm this court’s holding in Dueñas . We also disagree an excessive fines analysis under the Eighth Amendment is preferable or would lead to a different result. We remand for the trial court to allow Belloso to request a hearing and present evidence demonstrating his inability to pay the court assessments and fines imposed by the court. We otherwise affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Information

The information charged Belloso with carrying a concealed dirk or dagger in violation of section 21310. The information alleged Belloso suffered three prior convictions of a violent or serious felony under the three strikes law (§§ 667, subds. (b)-(j), 1170.12), including a 1995 conviction of assault in violation of section 245, subdivision (a)(1), and 2013 convictions of assault in violation of section 245, subdivision (a)(1), and making a criminal threat in violation of section 422. The information also alleged five prior felony convictions for which Belloso served separate prison terms within the meaning of section 667.5, subdivision (b).

Belloso pleaded not guilty and denied the special allegations.

B. The Evidence at Trial

On the evening of February 20, 2018 Los Angeles County Sheriff’s Deputy Scott Simpkins and his partner were on patrol in an unmarked black SUV in the City of Lakewood. Deputy Simpkins was driving northbound on Woodruff Avenue when he observed Belloso about 50 feet away walking in the same direction on the sidewalk. The area was illuminated well by street lights and lights from the surrounding buildings. According to Deputy Simpkins, Belloso "was walking very ridged, kind of very upright. He was very rapid in his movements and he was constantly turning around, looking around nervously. There was [nobody] else around him."

Deputy Simpkins pulled the SUV alongside the curb, within 15 feet of Belloso. As the vehicle came to a stop, Belloso reached into his front right pocket with his right hand and pulled out a long, fixed-bladed knife. Belloso held the knife with his right hand, keeping it low by his side. As Deputy Simpkins exited his vehicle and approached, Belloso dropped the knife, stepped to the side, and got down on his knees. Deputy Simpkins detained Belloso. Belloso stated he was carrying the knife because he was not from the area and was "sketched out." Deputy Simpkins interpreted this to mean Belloso had the knife for protection. Deputy Simpkins recovered the knife from the ground and booked it into evidence.

Deputy Simpkins brought the knife in an envelope to court to show the jury. The knife was covered by a piece of thick paper, secured by rubber bands. Deputy Simpkins explained, "It’s wrapped like this so the person does not cut themselves." He described the knife as a stainless steel knife, measuring eight to nine inches, with a four- to four-and-a-half-inch fixed blade, which could not be folded. The jury was shown a photograph of the knife taken by Deputy Simpkins as part of the booking process.⁴ The photograph shows the blade is curved on one side and straight on the other, with a pointed tip on the end.

Belloso did not call any witnesses.

C. The Verdict and Sentencing

The jury found Belloso guilty of carrying a dirk or dagger, in violation of section 21310. On the day of sentencing, Belloso admitted the special allegation he suffered a 2013 conviction of making a criminal threat under section 422, which was a violent or serious felony conviction under the three strikes law. Belloso also admitted the special allegation he suffered five prior felony convictions for which he served separate prison terms within the meaning of section 667.5, subdivision (b). The trial court accepted the pleas and found the special allegations were true. At Belloso’s request, the court struck the allegations of the 1995 prior strike conviction and the five prison priors.⁵

The trial court sentenced Belloso to an aggregate term of six years, comprised of the upper term of three years ( §§ 21310 & 1170, subd. (h)(1)) doubled under the three strikes law. The court imposed a $30 court facilities assessment ( Gov. Code, § 70373, subd. (a)(1) ) and a $40 court operations assessment ( Pen. Code, § 1465.8, subd. (a)(1) ). The court also imposed the statutory minimum restitution fine of $300 (§ 1202.4, subd. (b)(1)), and it imposed and suspended a parole revocation restitution fine in the same amount (§ 1202.45). Belloso did not object to imposition of the assessments and fines or raise his inability to pay.

Belloso timely appealed.

DISCUSSION

A. Substantial Evidence Supports Belloso’s Conviction of Carrying a Concealed Dirk or Dagger

1. Standard of review

"In evaluating a claim regarding the sufficiency of the evidence, we review the record ‘in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ " ( People v. Westerfield (2019) 6 Cal.5th 632, 713, 243 Cal.Rptr.3d 18, 433 P.3d 914 ; accord, People v. Penunuri (2018) 5 Cal.5th 126, 142, 233 Cal.Rptr.3d 324, 418 P.3d 263 [" ‘To assess the evidence’s sufficiency, we review the whole record to determine whether any rational trier of fact could have found the essential elements of the crime or special circumstances beyond a reasonable doubt.’ "].) " ‘The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence.’ [Citations.] ‘We presume in support of the judgment the existence of every fact the trier of fact reasonably could infer from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact’s findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding.’ " ( Westerfield , at p. 713, 243 Cal.Rptr.3d 18, 433 P.3d 914 ; accord, Penunuri , at p. 142, 233 Cal.Rptr.3d 324, 418 P.3d 263 [" ‘A reversal for insufficient evidence "is unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to support’ " the jury’s verdict.’ "].)

2. Substantial evidence supports the jury’s finding Belloso’s knife was a dirk or dagger

"[S]ection 21310 makes it a criminal offense to carry ‘concealed upon the person any dirk or dagger.’ " ( People v. Castillolopez (2016) 63 Cal.4th 322, 327, 202 Cal.Rptr.3d 703, 371 P.3d 216 ; see § 21310 ["any person in this state who carries concealed upon the person any dirk or dagger" commits a criminal offense punishable as a felony or misdemeanor].) Section 16470 defines a dirk or dagger as "a knife or other instrument with or without a handguard that is capable of ready use as a stabbing weapon that may inflict great bodily injury or death."

"[T]he legislative history is clear and unequivocal: the intent to use the concealed instrument as a stabbing instrument is not an element of the crime of carrying a concealed dirk or dagger." ( People v. Rubalcava (2000) 23 Cal.4th 322, 331, 96 Cal.Rptr.2d 735, 1 P.3d 52 ; accord, Stark v. Superior Court (2011) 52 Cal.4th 368, 394-395, 128 Cal.Rptr.3d 611, 257 P.3d 41.) However, a defendant must know the concealed instrument could readily be used as a stabbing weapon. ( Rubalcava , at p. 332, 96 Cal.Rptr.2d 735, 1 P.3d 52 ["[T]o commit the offense, a defendant must still have the requisite guilty mind : that is, the defendant must knowingly and intentionally carry concealed upon his or her person an instrument ‘that is capable of ready use as stabbing weapon.’ "]; see CALCRIM No. 2501 ["To prove that the defendant is guilty of this crime, the People must prove that: [¶] ... [¶] 4. The defendant knew that it could readily be used as a stabbing weapon."].) Whether a knife is...