P. v. Besenty

Filed 9/18/17 P. v. Besenty CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent,
v.
NANCY MARIE BESENTY,
Defendant and Appellant.
B275222
(Los Angeles County
Super. Ct. No. TA115853)
APPEAL from a judgment of the Superior Court of Los
Angeles County, John T. Doyle, Judge. Affirmed, with
directions.
J. Kahn, 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, Senior
Assistant Attorney General, Scott A. Taryle, Supervising

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Deputy Attorney General, and Rene Judkiewicz, Deputy
Attorney General, for Plaintiff and Respondent.
_______________________
The jury found defendant and appellant Nancy Marie
Besenty guilty in count 1 of the first degree murder of
Yesenia Quintanilla (Pen. Code, § 187, subd. (a))1 and in
count 2 of the attempted willful, deliberate, and
premeditated murder of Carlos Quintanilla (§§ 664, 187,
subd. (a)). As to both counts, the jury also found the crimes
were committed for the benefit of, at the direction of, and in
association with a criminal street gang with the specific
intent to promote, further, and assist in criminal conduct by
gang members (§ 186.22, subd. (b)(1)(C)), and that a
principal personally and intentionally discharged a firearm,
causing great bodily injury and death (§ 12022.53, subds. (d),
(e)(1)).
The trial court sentenced Besenty to 50 years to life in
prison in count 1, comprised of 25 years to life for murder
and 25 years to life for the firearm enhancement. As to
count 2, Besenty was sentenced to life in prison, plus a
consecutive 25 years to life for the firearm enhancement.
The court affirmed the convictions on direct appeal.
The Supreme Court denied review. Besenty petitioned for
1 Unless otherwise indicated, all statutory references
are to the Penal Code.

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habeas corpus in the Supreme Court on September 12, 2014.
The Supreme Court issued an order returnable in the
Superior Court, requiring the People to show cause why
“Petitioner is not entitled to relief under People v. Chiu
(2014) 59 Cal.4th 155 [(Chiu)].”
In response to the order to show cause, the People
conceded Besenty was entitled to resentencing under Chiu.
The trial court reduced Besenty’s murder conviction to
murder in the second degree,2 and her attempted murder
2 Both Besenty and the Attorney General state in their
briefs that the trial court, at resentencing, reduced the
charge in count 2 to attempted murder, without
premeditation and deliberation. The trial court stated
something different from what the parties assert: “As to
count 2 for attempted -- it would have to be attempted
second-degree murder -- wouldn’t it?” The prosecutor
replied, “Yes.”
Despite the court’s statement and prosecutor’s
acquiescence, there is no crime of attempted second degree
murder, because “[a]ttempted murder is not divided into
different degrees.” (People v. Favor (2012) 54 Cal.4th 868,
876.) The effect of a finding that an attempted murder was
willful, deliberate, and premeditated is to increase the
punishment from a determinate term of five, seven, or nine
years, to an indeterminate term of life in prison. (§ 664,
subd. (a).)
Notwithstanding its comment that count 2 was now
attempted second-degree murder, the trial court imposed a
life sentence, which comports with the jury’s finding that the
attempted murder was willful, deliberate, and premeditated.

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conviction to “attempted second-degree murder.” She was
sentenced to 15 years to life in prison in count 1, plus 25
years to life for the gun enhancement; life in prison in count
2, plus 25 years to life for the gun enhancement; and one
year each for two enhancements under section 667.5,
subdivision (b).
Besenty appeals following the resentencing,
contending: (1) denial of her request for an ability to pay
hearing on victim restitution at resentencing was error, (2)
imposition of a sentence in excess of 70 years to life for
aiding and abetting murder under a natural and probable
consequences theory of liability constitutes cruel and
unusual punishment, and (3) imposition of the 667.5,
subdivision (b) enhancement terms was unauthorized. We
modify the sentence by striking the section 667.5,
subdivision (b) enhancements, and otherwise affirm.
FACTS
On the afternoon of November 25, 2010, Cindy Sanchez
drove her boyfriend, Carlos Quintanilla, to his sister
As Besenty does not challenge the sentence imposed in count
2, we do not further discuss the impact, if any, of the court’s
statement that count 2 should be treated as a non-existent
offense.

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Yesenia’s apartment.3 Carlos had been a member of the
18th Street gang for about 10 years. Yesenia claimed the
Los Players clique, but she was not actually an 18th street
gang member.
Sometime after 10:00 p.m., Sanchez drove the
Quintanillas to a location on 79th Street, within 18th Street
gang territory. Yesenia told Sanchez “she needed to go talk
to somebody, something personal.” When they arrived,
Yesenia and Carlos exited the car and began yelling for Ada
Zeledon, using her 18th Street gang moniker, “Giggles.” The
Quintanillas disliked Zeledon, because Zeledon made
statements that Yesenia had been “prostituting,” and
making the gang look bad. Zeledon and her friend had also
“jumped” the Quintanillas’ sister.
Zeledon came out and argued with Yesenia. Carlos
tried to hit Zeledon with a bottle. Both Carlos and Yesenia
challenged Zeledon to fight, but she refused. Zeledon called
Mala and Francisco Lozano, who were also 18th Street gang
members, for help. The Quintanillas left when Zeledon’s
mother came outside.
After the Quintanillas got back in the car, Yesenia had
Sanchez drive her to a location on 82nd Street, another area
Sanchez knew to be claimed by the 18th Street gang.
Yesenia wanted to look for Lozano, who Carlos knew to be a
3 Because they share the same last name, we refer to
Yesenia and Carlos individually by their first names, and
collectively as the Quintanillas.

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“shot caller” for the Los Gangsters clique. Carlos testified
that a shot caller has the authority to tell other gang
members what to do.
As they neared the location, the Quintanillas jumped
out of the moving car. Sanchez saw them heading toward
Lozano, who was standing in front of an apartment gate
with about 15 other people. Carlos attempted to punch
Lozano, but Lozano ducked. Yesenia pepper-sprayed Lozano
and yelled profanities at him. Yesenia and Lozano argued
loudly about graffiti on a nearby wall. “Bitch, you ain’t from
my ‘hood,’” was written on the wall, and Yesenia’s gang
moniker “La Crazy” had been crossed out. Yesenia
demanded to know why Lozano crossed out her name. He
responded that she was not from the 18th Street gang, she
needed to stop claiming the gang, and he did not like her.
Besenty walked over a few minutes after Yesenia
pepper-sprayed Lozano. She identified herself by the gang
moniker “Casper.” Carlos knew her to be a shot caller.
Besenty and Carlos argued for over an hour. At one point in
the argument Besenty punched Carlos in the face. Yesenia
asked Besenty why she hit Carlos. Sanchez got out of the
car and warned Besenty never to punch Carlos because it
was disrespectful to her and her daughter. Besenty told
Carlos that she was “an OG from 18th Street.” Yesenia
asked her brother if he wanted her to fight Besenty, but he
said no. Besenty told Carlos, “Man, you know you talking to
the main head?” She took out her cell phone and called
Yesenia Escobar, known as “Shorty,” and told her to come

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over. Besenty then gave Lozano “a look.” Lozano warned
the Quintanillas to “watch tomorrow” several times and said
that he was going to get them. The Quintanillas returned to
Sanchez’s car and drove back to Yesenia’s apartment, where
they all spent the night.
Zeledon called Lozano the next day. She was upset
that the Quintanillas “disrespected” her house and family.
Lozano told Zeledon that Yesenia pepper-sprayed him. They
both wanted to beat Yesenia up.
Later that night, Zeledon, her friend Mala, and Lozano
got into Besenty’s car and drove around looking for Yesenia.
Besenty drove them to Yesenia’s apartment. Escobar also
drove to the apartment with Patricia Acosta and Patricia
Ortiz. Zeledon, Lozano, and Mala got out of Besenty’s car
and jumped over the apartment complex gate. Escobar and
Acosta followed. Besenty and Ortiz remained in the
vehicles.
Sanchez, Yesenia, Carlos, and their children were
having dinner when they heard a loud knock. The
Quintanillas asked who was at the door. Someone outside
answered, “Hey, what’s up? It’s me.” Carlos opened the door
to find Escobar and Acosta outside. The two women entered
the apartment and demanded to know why Yesenia pepper-
sprayed Lozano.
Escobar left, but returned a few minutes later with
Mala. Mala said she came to Yesenia’s apartment because
she heard that someone was claiming her “hood.” She asked
Yesenia, “Aren’t you from Columbia?” Yesenia said, “No.

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I’m from Los Players.” Carlos also replied that he was from
either Lil Cycos or Columbia, two subsets of the 18th Street
gang. The women told Yesenia to come outside. She
refused, stating that her family was inside. If they wanted
to tell her something, they could do it there.
Mala asked Carlos to go outside, and he agreed. When
Carlos stepped out of the apartment, he saw Lozano pulling
up the hood of his jacket. Afraid of what Lozano might do,
Carlos tried to turn around to go back inside the apartment,
but Escobar pepper-sprayed him. Mala grabbed Carlos by
the shirt. Mala, Zeledon, and Acosta beat Carlos. Sanchez
could hear him struggling and screaming. Carlos tried to go
back into the apartment but Zeledon held his shirt collar and
punched him. Yesenia tried unsuccessfully to pull Carlos
back into her apartment. Lozano pulled out a gun wrapped
in a sock and shot Carlos in the head. Carlos collapsed.
Acosta, Mala, and Zeledon fled, jumping over the fence.
Sanchez heard Yesenia yelling, “Don’t do this. I have
kids.” Sanchez ran with the children to Yesenia’s bedroom,
where she heard a gunshot. Sanchez did not close the door.
Lozano pointed a sock-covered gun at Yesenia’s head.
Yesenia screamed, he shot her in the head, and she fell to
the floor. Yesenia ran to her bathroom and tried to close the
door.
Lozano ran after Yesenia, but then walked into the
bedroom where Sanchez was squatting down on a mattress.
He aimed for Sanchez’s head. Sanchez kicked Lozano and
moved to avoid the gun. After a few minutes, Lozano left

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without explanation. Lozano, Zeledon, and Mala ran to
Besenty’s car. Besenty quickly drove them back to her house
in another neighborhood.
Yesenia died as a result of the gunshot wound to her
head a few days later. Carlos survived, but lost hearing in
one ear, and suffered lasting speech and memory
impairment.
The prosecution’s gang expert, Officer Gabriel
Gonzales, opined that Lozano was a shot caller for the Los
Gangsters clique of the 18th Street gang and also belonged
to the Wall Street clique. Officer Gonzales explained that
OG’s or shot callers have high status within their gang,
dictating gang policy and directing the lower-ranking
“soldiers” to commit crimes at their discretion. Someone who
falsely claimed to be a shot caller would be severely beaten
or killed for misrepresenting the gang. He testified that
respect is a central concern in gang culture. Gangs respond
violently to disrespect because it weakens their reputation,
and impedes their ability to control their territory and
commit crimes.
DISCUSSION
Victim Restitution Orders
Section 1202.4, subdivision (f), provides that “in every
case in which a victim has suffered economic loss as a result
of the defendant’s conduct, the court shall require that the

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defendant make restitution to the victim or victims in an
amount established by court order, based on the amount of
loss claimed by the victim or victims or any other showing to
the court. If the amount of loss cannot be ascertained at the
time of sentencing, the restitution order shall include a
provision that the amount shall be determined at the
direction of the court. The court shall order full restitution.”
“A defendant’s inability to pay shall not be a consideration in
determining the amount of a restitution order.” (§ 1202.4,
subd. (g).)
Besenty contends the trial court erred when it denied
her request for an ability to pay hearing at resentencing.
The court ruled that victim restitution was outside the scope
of the Supreme Court’s remand. She asserts that although
the abstract of judgment from the original sentencing
hearing reflects she was ordered to pay victim restitution,
the court only made the order as to Lozano at the hearing,
which deprived her of the opportunity to object or be heard
at the time of the sentencing court’s pronouncement.
The Attorney General concedes the trial court did not
orally order Besenty to pay victim restitution, but contends
she waived the issue by failing to raise it in her first appeal
to this court. The Attorney General further argues that the
contention fails on the merits because the Supreme Court’s
limited remand did not encompass victim restitution.
We reject Besenty’s contentions as forfeited, waived,
and without merit.

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Relevant Proceedings
Besenty and Lozano were tried and sentenced together.
The prosecution’s sentencing memorandum—which the
sentencing court stated it had reviewed—recommended that
the court order Besenty to pay victim restitution in the
amount of $13,689.30 plus 10 percent interest to the State
Victim Compensation Board to reimburse the state for
monies paid for Yesenia’s funeral and burial expenses, and
$468.63 plus 10 percent interest to Teresa Ramirez. While
pronouncing Lozano’s sentence, the court asked the
prosecutor if he “put the number on the restitution order.”
The prosecutor responded, “Yes.” The court then stated:
“$13,689.30. And I am signing that. With 10 percent
interest payable to the State Victim Compensation Board.”
The prosecutor then informed the court he was “filling out
another restitution amount . . . for Mrs. Ramirez as to each
defendant” “for $458, I believe.”4 (italics added.) The court
responded, “An additional $458 for Mrs. Ramirez. I’m
signing that also.” Besenty’s counsel asked to review the
restitution order, as she did not recall receiving it earlier.
The prosecutor stated the order had been e-mailed to
counsel, but provided her a copy, along with “the paperwork
on it.” Later, after imposing Besenty’s prison terms, the
trial court asked: “Is there anything else that I left out?
4 The amount of victim restitution in the court’s order
is $458.63, as requested in the sentencing memorandum.

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Restitution orders are signed as to Ms. Besenty in the same
amounts as to Mr. Lozano.” Besenty’s counsel did not object
to the victim restitution amount, contest Besenty’s ability to
pay, or request an ability to pay hearing. The restitution
orders that the parties viewed and the court executed at the
sentencing hearing were consistent with the
recommendations in the People’s sentencing memorandum.
The minute order and abstract of judgment accurately
reflected the court’s pronouncement.5
Besenty did not argue on direct appeal to this court
that the trial court failed to conduct a hearing on her ability
to pay restitution. We affirmed the judgment. When
Besenty subsequently filed unsuccessful petitions for habeas
corpus in this court and the trial court, neither petition
raised an issue regarding the failure to hold an ability to pay
hearing. In response to Besenty’s habeas corpus petition in
the Supreme Court, the cause was returned to the trial court
with an order requiring the People to show cause “why
[Besenty] was not entitled to relief under People v. Chiu
(2014) 59 Cal.4th 155.” As set forth above, defendant was
granted relief under Chiu and was resentenced.
Defense counsel at resentencing requested an ability to
pay hearing. The trial court responded, “Why would I do
that? What has changed?” The court denied the request,
5 The abstract of judgment lists a total of $14,147.93 to
be paid to the victim and the restitution fund, but does not
allocate the amounts to be paid to each.

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stating that it was “going to maintain the original restitution
[order]” because the issue was not within the scope of the
Supreme Court’s remand on “the Chiu issue” and because
there had been no changed circumstances that would justify
modifying the victim restitution orders. Counsel then asked
if the court would stay the order or take some other action.
The court responded that it would not change the order
because the victim had a constitutional right to restitution
under California law, and Besenty’s payments could be
taken out of her prison earnings or “any money her family
puts on the books,” which was “a just outcome.” Counsel did
not assert that Besenty was unable to pay or contest the
amount of victim restitution awarded.
Forfeiture
“‘In general, the forfeiture rule applies in the context
of sentencing as in other areas of criminal law.’ [Citation.]”
(People v. Trujillo (2015) 60 Cal.4th 850, 856.) Our Supreme
Court has held that “errors [that] are essentially factual, and
thus distinct from ‘“clear and correctable”’ legal errors that
appellate courts can redress on appeal ‘independent of any
factual issues presented by the record at sentencing’
[citation]” are forfeited on appeal if not raised with the trial
court. (Id. at pp. 856–857 [failure to conduct inability to pay
hearing in context of probation supervision and presentence
investigation fees imposed under section 1203.1b]; see also
People v. Aguilar (2015) 60 Cal.4th 862 [failure to conduct

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inability to pay hearing in context of probation supervision
fees, presentence investigation fees, and appointed trial
counsel fees imposed under section 1203.1b].)
The record demonstrates that the sentencing court
ordered Besenty to pay victim restitution at the first
sentencing hearing, and that Besenty’s counsel reviewed the
victim restitution orders but did not raise the issue of her
ability to pay restitution with the trial court. We see no
reason that the law of forfeiture should not apply here, and
Besenty offers none.
Waiver
Besenty concedes she did not raise the issue of her
ability to pay in her first appeal to this court. To avoid
waiver, she phrases her contention as a challenge to the
court’s denial of her request for an ability to pay hearing at
resentencing rather than a challenge to the court’s failure to
conduct an ability to pay hearing at the original sentencing
hearing. Regardless of how the argument is framed, its
fundamental nature remains the same. Besenty seeks the
opportunity to attack the validity of the victim restitution
order in the absence of a determination that she is able to
pay restitution.
Even where “the issue defendant now seeks to raise
was technically embraced in [the] remand order,” waiver
applies if “(1) the issue was ripe for decision by the appellate
court at the time of the previous appeal; (2) there has been

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no significant change in the underlying facts or applicable
law; and (3) the defendant has offered no reasonable
justification for the delay.” (People v. Senior (1995) 33
Cal.App.4th 531, 538 (Senior).)
Assuming the remand encompassed victim
restitution—a point which we doubt—“all of the factual
predicates upon which [Besenty’s] present contention rests
were available at the time of [her] initial appeal. There is no
apparent justification as to why this issue could not have
been raised the first time [Besenty’s] case was before this
court. There being no reason why [she] ‘should get “two
bites at the appellate apple,”’ [citation], we deem [Besenty’s]
claim of error to be waived.” (Senior, supra, 33 Cal.App.4th
at p. 538.)
Merits
In addition to stating victim restitution was outside the
scope of the remand, the trial court also denied Besenty’s
request on the merits, finding there were no changed
circumstances that would justify modifying the victim
restitution orders, the victim had a constitutional right to
restitution under California law, and Besenty had the ability
to pay restitution from prison earnings and any money given
to her by family. The court was not required to consider
Besenty’s ability to pay the restitution award. To the
contrary, “[a] defendant’s inability to pay shall not be a
consideration in determining the amount of a restitution

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order.” (§ 1202.4, subd. (g); see People v. Draut (1999) 73
Cal.App.4th 577, 582 [court abuses its discretion if it reduces
restitution award to victim based on defendant’s inability to
pay].)
Besenty relies on People v. Harvest (2000) 84
Cal.App.4th 641 (Harvest) and People v. Rosas (2010) 191
Cal.App.4th 107 (Rosas), but neither case addressed the
question of whether the court may consider a defendant’s
request for an ability to pay hearing on victim restitution
raised for the first time at resentencing. In Harvest, the
trial court reserved jurisdiction over the issue of victim
restitution at the initial sentencing hearing, and ordered
Harvest to pay restitution to members of the victims’
families when the defendant was resentenced after his
conviction for second degree murder was reduced to
voluntary manslaughter. The Court of Appeal held that the
trial court did not exceed the scope of its remand—which
encompassed “pretty much all of the particulars of
sentencing”—“particularly in view of the fact that the trial
court had expressly reserved jurisdiction on this issue.”
(Harvest, supra, at p. 651.) Unlike the situation in Harvest,
the trial court here did not reserve jurisdiction over the
amount of restitution, and defendant had an opportunity to
challenge the amount of restitution imposed at the original
hearing and on direct appeal.
Rosas is also inapposite. In Rosas, the court held that
issues relating to restitution fines imposed under section
1204.2, subdivision (b), may be within the scope of a remand

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for resentencing even where the remand does not state so
expressly, if the restitution fine is not severable from the
judgment. (Rosas, supra, 191 Cal.App.4th at p. 117.) An
order of victim restitution is not analogous to a restitution
fine. When imposing a restitution fine greater than the
statutory minimum, a court has the discretion to calculate
the fine by multiplying the minimum fine by the number of
years the defendant has been sentenced to serve, and then
multiplying the sum by the number of felony counts of which
the defendant has been convicted. (§ 1204.2, subd. (b)(2).)
Under these circumstances, the amount of the fine will be
directly related to other aspects of the sentence, and will not
be severable. Victim restitution, in contrast, is based “on the
amount of loss claimed by the victim or victims or any other
showing to the court.” (§ 1202.4, subd. (f).) It is calculated
independent of the sentence, and must be paid in full.
(§ 1202.4, subds. (f) & (g).) The reasoning in Rosas has no
application here.
Cruel and Unusual Punishment
Besenty contends that the resentencing court’s
imposition of a term in excess of 70 years to life constitutes
cruel and unusual punishment based on the underlying
premise in Chiu. We disagree.
The United States and the California Constitutions
prohibit cruel and unusual punishment. (U.S. Const., 8th
Amend.; Cal. Const., art. I, § 17.) A sentence may be

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unconstitutional if it is grossly disproportionate to the crime
committed. (Graham v. Florida (2010) 560 U.S. 48, 59–60;
People v. Dillon (1983) 34 Cal.3d 441, 478.) Whether a
sentence constitutes cruel or unusual punishment is a
question of law that we review de novo, viewing the
underlying facts in the light most favorable to the judgment.
(People v. Mantanez (2002) 98 Cal.App.4th 354, 358.) A
defendant must overcome a “considerable burden” when
challenging a penalty as cruel or unusual. (People v. Wingo
(1975) 14 Cal.3d 169, 174.)
A sentence violates California’s prohibition on cruel or
unusual punishment if the punishment is so
disproportionate to the crime for which it was imposed that
it “shocks the conscience and offends fundamental notions of
human dignity.” (In re Lynch (1972) 8 Cal.3d 410, 424.) We
apply a three-part test to determine whether a particular
sentence is disproportionate to the offense for which it is
imposed. First, we examine “the nature of the offense and/or
the offender, with particular regard to the degree of danger
both present to society.” (Id. at p. 425.) Second, we compare
the punishment imposed with punishments prescribed by
California law for more serious offenses. (Id. at pp. 426–
427.) Third, we compare the punishment imposed with
punishments prescribed by other jurisdictions for the same
offense. (Id. at pp. 427–429.) “Only in the rarest of cases
could a court declare that the length of a sentence mandated
by the Legislature is unconstitutionally excessive.” (People
v. Martinez (1999) 76 Cal.App.4th 489, 494 (Martinez).)

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The Eighth Amendment to the federal Constitution
“prohibits its imposition of a sentence that is grossly
disproportionate to the severity of the crime.” (Rummel v.
Estelle (1980) 445 U.S. 263, 271.) In determining whether a
particular sentence is grossly disproportionate, “we look to
the gravity of the offense and the harshness of the penalty”
and, as under California law, we may consider an
intrajurisdictional and interjurisdictional comparison of
punishments. (Solem v. Helm (1983) 463 U.S. 277, 290–
291.)
Besenty’s contention is without merit. Besenty’s
sentence of in excess of 70 years to life in prison reflects an
aggregate sentence. Chiu does not address the
constitutionality of imposing the same penalty on a direct
perpetrator and an aider and abettor found guilty of
attempted murder under the natural and probable
consequences doctrine, or of imposing a firearm
enhancement when the aiding and abetting defendant did
not wield the gun. The cases that address these issues do
not support Besenty’s position. In People v. Favor (2012) 54
Cal.4th 868, 879–880, our Supreme Court held that once a
jury has found an attempted murder is premeditated, an
aider and abettor is no less culpable than the direct
perpetrator under the natural and probable consequences
doctrine, regardless of the aider and abettor’s own mental

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state.6 Our colleagues in Division Four have held that it is
not cruel or unusual punishment to impose a 25 year-to-life
enhancement for use of a firearm upon a non-shooter
convicted under the natural and probable consequences
theory in a gang-related murder. (People v. Gonzales (2001)
87 Cal.App.4th 1, 16, overruled on another ground as
recognized in In re Johnson (2016) 246 Cal.App.4th 1396,
1406.) Besenty cites to no contrary precedent. Chiu held the
“punishment for second degree murder is commensurate
with a defendant’s culpability for aiding and abetting a
target crime that would naturally, probably, and foreseeably
result in a murder under the natural and probable
consequences doctrine.” (Chiu, supra, 59 Cal.4th at p. 166.)
The penalty for second degree murder is 15 years to life,
which is the sentence Besenty received in count 1. (Id. at
p. 163; §§ 190, subd. (a), 3046, subd. (a)(2).) The court’s
reduction of Besenty’s sentence for murder by 10 years
reflects Chiu’s holding that she may have been less culpable
than Lozano.
Besenty contends her sentence was cruel and unusual
because although she was almost 50 years old at the time of
the hearing, she had a minimal criminal history composed of
drug-related offenses with no serious or violent felonies, and
the longest term she served was three years in prison for a
probation violation for possession of narcotics. She argues
6 Chiu discussed Favor at length and did not overrule
it. (Chiu, supra, 59 Cal.4th at pp. 162–163.)

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that as a mere driver, her participation in the crimes was
minimal, and that her motive and gang connection were
“speculative.”
Besenty does not compare her sentence to more serious
offenses in California or to punishment imposed for the same
offenses in other jurisdictions. We take this “as a concession
that [her] sentence withstands a constitutional challenge on
either basis.” (People v. Retanan (2007) 154 Cal.App.4th
1219, 1231.) Besenty also significantly minimizes her role in
the crimes. Besenty was with Lozano the night before the
shootings. The two of them confronted the Quintanillas.
She engaged in a verbal altercation with Carlos for about an
hour, punching him in the face at one point. Besenty
announced she was “an OG from 18th Street,” and
threatened Carlos that she was “the main head.” She then
gave her fellow shot caller Lozano a “look,” and he
immediately threatened the Quintanillas that he was going
to get them and to “watch tomorrow.” The next day, Besenty
drove Zeledon—who had purportedly been “disrespected”—
and Lozano—who was armed and ultimately shot both
victims—to Yesenia’s apartment. She waited for the
attackers and drove one of the getaway vehicles to her home,
where they all congregated afterwards. Besenty’s self-
proclaimed status as “the main head” and “an OG from 18th
Street” strongly suggest that she was integrally involved in
the attack. The prosecution’s gang expert testified that shot
callers or OG’s dictate gang policy, direct lower-ranking gang
members in criminal activity, and react violently to

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perceived slights in order to protect the gang’s reputation.
Zeledon stated that she felt disrespected by the scene with
the Quintanillas at her house, and Lozano was
unquestionably disrespected when Yesenia pepper-sprayed
him in the face. It can be reasonably inferred that, as one of
the two shot callers in the group, Besenty had a role in
orchestrating the shootings in retaliation to these slights to
her gang. She facilitated the crimes by driving gang
members to and from Yesenia’s apartment and providing her
cohorts sanctuary at her home, which was removed from the
scene. Her participation was far from nominal.
Besenty’s insistence that her gang affiliation and
motive were speculative is contrary to the evidence and
inconsistent with the jury’s finding that she acted for the
benefit of, at the direction of, and in association with a
criminal street gang with the specific intent to promote,
further, and assist in criminal conduct by gang members.
Although she did not have a record of serious or violent
criminal activity, Besenty had committed drug-related
offenses, one of which resulted in a three-year prison term in
conjunction with a parole violation. Her criminal history
was not negligible, but even if it could be characterized in
that manner, the lack of a significant prior criminal record is
not determinative, particularly in light of the heinous nature
of the crimes. (Martinez, supra, 76 Cal.App.4th at pp. 496–
497; People v. Crooks (1997) 55 Cal.App.4th 797, 807.)
The violent crimes in this case were severe in the
extreme. Five gang members attacked the Quintanillas.

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Carlos was badly beaten and pepper-sprayed. Both siblings
were shot in the head, resulting in Yesenia’s death and
Carlos’s lasting impairments. Sanchez barely escaped being
shot. All of this took place in front of Sanchez and Yesenia’s
children, who cowered in the bedroom with Sanchez as
Yesenia was shot. Both the fight the night before and the
shootings were precipitated by a disagreement over graffiti
and a relatively minor physical altercation. This violent and
deadly reaction to comparatively minimal provocation
demonstrates the serious threat that Besenty and her
companions pose to society. In light of these facts, we cannot
conclude that Besenty’s sentence is disproportional to her
crimes under either the state or federal standard.
Section 667.5 Enhancements
We agree with the parties that the two one-year prior
prison term enhancements (§ 667.5, subd. (b)) were
unauthorized. Section 667.5 enhancements may not be
imposed “unless they are charged and admitted or found
true . . . .” (§ 667.5, subd. (d).) No prior prison term
enhancements were charged, admitted, or found true as to
Besenty. We order the section 667.5, subdivision (b)
enhancements stricken from the abstract of judgment.
(People v. Sanders (2012) 55 Cal.4th 731, 743, fn. 13
[unauthorized sentence may be corrected on appeal].)

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DISPOSITION
Besenty’s two one-year terms under section 667.5,
subdivision (b), are stricken. The clerk of the Superior Court
is ordered to issue an amended abstract of judgment. The
judgment is otherwise affirmed.
KRIEGLER, Acting P.J.
We concur:
BAKER J.
DUNNING, J.
 Judge of the Orange Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the
California Constitution.

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