State of Louisiana v. Jorge Lopez Benavides

Judgment rendered March 9, 2022.
Application for rehearing may be filed
within the delay allowed by Art. 922,
La. C. Cr. P.

No. 54,265-KA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

STATE OF LOUISIANA Appellee

versus

JORGE LOPEZ BENAVIDES Appellant

*****

Appealed from the
Fourth Judicial District Court for the
Parish of Ouachita, Louisiana
Trial Court No. 15-F2405

Honorable Marcus L. Hunter, Judge

*****

LOUISIANA APPELLATE PROJECT Counsel for Appellant
By: Prentice Lang White

ROBERT STEPHEN TEW Counsel for Appellee
District Attorney

SHIRLEY M. WILSON-DAVIS
Assistant District Attorney

*****

Before MOORE, ROBINSON, and O’CALLAGHAN (Pro Tempore), JJ.

MOORE, C.J.

A unanimous jury convicted Jorge Lopez Benavides as charged for

two counts of vehicular homicide (La. R.S. 14:32.1) and one count of first

degree vehicular negligent injuring (La. R.S. 14:39.2). The trial court

imposed a sentence of 20 years and 19 years at hard labor for each count of

vehicular homicide, to be served consecutively as required by statute. For

the first degree vehicular negligent injury, the court imposed a 3-year

sentence to be served concurrently with the homicide sentences.1 The court

also imposed $5,000 fines for each homicide conviction, or in default

thereof, to serve 720 days each, and a $5,000 fine for vehicular negligent

injuring, or in default thereof, 180 days. Additionally, for each of the three

convictions, the court ordered Benavides to pay $5,000 to the Crime Victims

Reparations fund, for a total of $30,000 in fines and reparations. The court

ordered all default time to be served concurrently. Benavides received credit

for time served since September 27, 2015.

Benavides appealed alleging that the evidence at trial was insufficient

to sustain his conviction for first degree vehicular negligent injuring, and the

consecutive 20-year and 19-year sentences constitute a 39-year sentence that

is constitutionally excessive for this 47-year-old first offender.

For the following reasons, we affirm in part, amend in part, reverse

and vacate in part, and remand with instructions.

1
The trial court initially imposed sentences of 20 years and 19 years for each
vehicular homicide conviction and ordered them to be served concurrently, plus a 3-year
sentence for first degree negligent injuring, consecutive to the concurrent sentences.
However, after reviewing the statute’s penalty provision that requires consecutive
sentences for each count where two or more deaths result from the incident, the court
made the homicide sentences consecutive, and the negligent injuring sentence concurrent.
La. R.S. 14:32.1(D).

FACTS

Jorge Lopez Benavides, a 47-year-old resident of Mississippi, spent

the evening of September 26, 2015, visiting a friend in the Monroe area.

Shortly after 11:00 p.m., while driving his white Toyota Tundra pickup truck

on La. 594, Benavides entered the exit ramp at Exit 124 of I-20 East and

began traveling west on the inside lane of the two eastbound lanes. Several

vehicles swerved to avoid colliding head-on with Benavides, who apparently

remained unaware that he was traveling in the wrong direction despite

oncoming vehicles. One of the eastbound vehicles swerved across the

outside lane and the shoulder before colliding with a fence. No injuries

resulted from that accident.

Moments later, Benavides’ truck collided head-on with a blue Ford

Mustang driven by Thomas Williams, age 20. Williams and his front-seat

passenger, Jamerro May, age 19, died at the scene within minutes of the

collision. A back-seat passenger, Randarious Cooper, age 16, sustained

injuries. He was apparently airlifted by helicopter to LSU-HSC in

Shreveport, and ultimately spent 4 weeks in hospitals.

Benavides suffered only minor injuries as a result of the collision. He

was taken to Glenwood Medical Center in West Monroe where he spent one

night for observation before his arrest upon release the next day. State

trooper Michael Williamson testified that he arrived at the hospital shortly

after Benavides and was directed to his room where he was being examined

for injuries. He said there was a strong odor of alcohol and Benavides

appeared to be intoxicated. He was Mirandized and a blood sample was

obtained by the state police. The test showed .15% blood alcohol, nearly

double the legal limit of .08%.
2

Benavides was initially charged by bill of information with five

offenses: two counts (Counts I and II) of vehicular homicide, one count

(Count III) of first degree vehicular negligent injuring, and two

misdemeanor charges (Counts IV and V), driving the wrong direction on a

one-way, and driving without a valid driver’s license. Subsequently, an

amended bill was filed that did not include the two misdemeanor charges.2

Benavides moved to suppress the blood alcohol test results on grounds

of a warrantless search, but these were ultimately found admissible.

Benavides remained in jail while awaiting trial for more than 5½ years

after the accident and his arrest. Following a three-day trial, a jury found

him guilty as charged on all three counts.

At trial, Dr. Frank Paretti, a forensic pathologist, testified that he

performed the autopsies on the victims, Williams and May. He described

the injuries suffered by each that resulted in their deaths minutes after the

accident. Williams bled to death from a completely severed aorta; May died

from massive trauma to his head and body.

Two witnesses, Morgan Anderson Graham and Lathaius Simmons,

testified that they were driving east on I-20 moments before the collision and

were forced off the interstate to avoid a head-on collision with the Toyota

truck driven by Benavides. Ms. Graham’s father, Brad Anderson, testified

that his shaken daughter called him after she was forced off the interstate.

When she returned home, he removed a video camera mounted above her

rear-view mirror; this contained video footage of Benavides’ truck traveling

2
In the original bill, Counts One and Two alleged that Benavides’ blood alcohol
level was .15% or more, contrary to La. R.S. 14:32.1; however, in the amended bill, these
counts alleged that his blood alcohol level was .08% or more, also contrary to La. R.S.
14:32.1.
3

in the wrong direction. He turned the video over to the state police when he

learned of the fatal accident, and it was played to the jury.

Randarious Cooper’s mother, Wanda Lagino, testified that the police

came to her door and told her that there had been an accident in which two

people had passed away and her son was injured. She then went to the Delhi

Police Department, where a state trooper told her she needed to hurry to

Shreveport because her son might not survive. She testified that Randarious

spent two weeks at LSU-HSC and two weeks at Willis-Knighton recovering

from his injuries. The prosecutor asked Ms. Lagino if Randarious’s injuries

were serious and if he still dealt with them; she responded, “yes, ma’am.”

Three of the state troopers who worked the accident scene testified at

trial. Trooper Ian Dollins, the first trooper to arrive at the scene, observed

the two young men in the front seat of the blue Mustang bleeding profusely.

He said that although they appeared to be alive, they were unresponsive to

his screams to unlock or open the door. He did not see and was not aware of

anyone in the backseat of the vehicle. He did not learn until later that there

was a third person in the backseat of the vehicle. Trooper Michael

Williamson, who arrived at the scene to assist Tpr. Dollins, testified that he

saw the two victims in the front seats, and they appeared to be deceased. He

did not see Randarious Cooper in the backseat of the vehicle. Shortly

afterwards, Tpr. Dollins went to Glenwood to make contact with Benavides.

Trooper James Olmstead was dispatched to the scene to assist Tpr.

Dollins in the investigation at 11:15 p.m. He testified that the victims were

deceased when he arrived, but still in the blue Mustang; he did not see a

backseat passenger; Benavides had already been taken to Glenwood.

Trooper Olmstead was not asked about the narrative in the police report he
4

wrote, to the effect that Randarious Cooper was “transported to LSU

Hospital (Shreveport) in critical condition.” Hence, it is not clear whether

his knowledge of Cooper’s condition was firsthand. This report, though part

of the appellate record, does not appear to have been placed into the

evidence at trial.

The exhibits that were put into evidence contain photographs of the

deceased victims and of the severely damaged blue Mustang. There is also a

DVD recording taken from Tpr. Dollins’ dash camera. This recording

captures almost 32 minutes after Dollins arrived at the accident, a helicopter

descending on the other side of several emergency vehicles and landing

either on the median or on the interstate itself. Some 28 minutes later, the

helicopter is seen lifting off, presumably headed to Shreveport.

During closing argument, defense counsel argued that the state had

failed to prove “serious bodily injury” to Randarious Cooper, a necessary

element to prove the charge of first degree negligent injuring.

After deliberations, the jury found Benavides guilty on all three

counts as charged.

At the sentencing hearing, the members of the deceased victims’ and

of Benavides’ families were permitted to address the court. Benavides

himself made a statement in which he accepted responsibility for the terrible

accident, and he apologized to the victims’ families. The court then imposed

the sentences.

The court later denied Benavides’ motion to reconsider sentences.

This appeal followed.

5

DISCUSSION

By his first assignment of error, Benavides contends that the trial

court erred by accepting the jury’s verdict of first degree negligent injuring

when the state failed to present any medical documentation to establish what

injuries Randarious Cooper sustained as a result of the accident. Other than

his mother’s personal assessment that his injuries were serious, there was no

medical testimony or medical records that described the injuries,

specifically, whether they involved, e.g., unconsciousness, extreme pain, or

posed a serious risk of death, as required by the statute. Hence, Benavides

argues that the “serious bodily injury” element of the offense was not proven

beyond a reasonable doubt.

The state argues that the jury could infer from the totality of

circumstantial evidence that Cooper suffered serious bodily injuries: there

was extensive damage to the Ford Mustang where the driver and front-seat

passengers were killed and he was a backseat passenger; Trp. Dollins was

unaware of anyone in the backseat when he tried to get the front-seat

victims, who appeared to be still alive, to respond to his shouts to open the

door (and this implies that Cooper was probably unconscious); Trp.

Williamson did not see a passenger in the backseat when he went to the

vehicle; and Cooper was airlifted by helicopter to Shreveport for emergency

medical treatment. The state argues that a jury could infer that the injuries

were serious, i.e, life-threatening. Finally, Cooper’s mother testified that she

was advised by a state trooper to go to the hospital in Shreveport because her

son might not survive. She said Randarious was in the hospital for four

weeks as a result of the injuries that still bothered him. Based on the totality

6

of these facts, the state maintains that the jury could reasonably conclude

that Cooper suffered serious injuries.

The standard for reviewing a sufficiency of the evidence claim is

“whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements

of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307,

319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979); State v. Tate, 01-1658

(La. 5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S. Ct. 1604,

158 L. Ed. 2d 248 (2004). This standard, now codified La. C. Cr. P. art.

821, does not provide the appellate court with a vehicle to substitute its own

appreciation of the evidence for that of the fact finder. State v. Pigford, 05-

0477 (La. 2/22/06), 922 So. 2d 517. The reviewing court does not assess

credibility or reweigh the evidence. State v. Marcantel, 00-1629 (La.

4/3/02), 815 So. 2d 50. In cases where proof is based on circumstantial

evidence, the evidence “must exclude every reasonable hypothesis of

innocence” in order to support a conviction. La. R.S. 15:438. All the

evidence, both direct and circumstantial, must meet the Jackson reasonable

doubt standard to support a conviction. State v. Jacobs, 504 So. 2d 817 (La.

1987); State v. Copes, 566 So. 2d 652 (La. App. 2 Cir.1990).

On the date of the accident, September 26, 2015, first degree vehicular

negligent injuring was defined by La. R.S. 14:39.2 as “inflicting of serious

bodily injury upon the person of a human being when caused proximately or

caused directly by an offender engaged in the operation of, or in actual

physical control of, any motor vehicle, aircraft, watercraft, or other means of

conveyance” when the offender was “under the influence of alcohol” or had

7

“a blood alcohol level of .08 per cent or more.”3 (Emphasis supplied). The

statute also defined “serious bodily injury”:

C. For purposes of this Section, “serious bodily injury”
means bodily injury which involves unconsciousness, extreme
physical pain or protracted and obvious disfigurement, or
protracted loss or impairment of the function of a bodily
member or organ or a mental faculty, or a substantial risk of
death.4

The “serious bodily injury” element in first degree vehicular negligent

injuring, a felony offense punishable by up to five years imprisonment, is

what distinguishes the offense from the lesser offense of vehicular negligent

injuring, a misdemeanor punishable by up to six months’ imprisonment.

The lesser offense requires only a showing of “any injury.” State v.

Christophe, 12-82 (La. App. 5 Cir. 10/16/12), 102 So. 3d 935, writ denied,

12-2432 (La. 4/19/13), 111 So. 3d 1029. Hence, for a jury to find that the

serious bodily injury element has been met, the evidence must show that the

victim suffered any one of the following:

(1) unconsciousness, or
(2) extreme pain, or
(3) protracted and obvious disfigurement, or
(4) protracted loss or impairment of the function of a bodily
member or organ or mental faculty, or
(5) substantial risk of death.5

In this case, the state adduced no medical or firsthand, direct

testimony at trial that described Randarious’s injuries as involving

3
Operating a motor vehicle while under the influence of one or more controlled
dangerous substances or drugs that are not controlled dangerous substances but
dangerous when combined with alcohol or taken in excessive quantities are also listed in
the statute.

4
This paragraph was repealed by 2019 La. Acts No. 2, § 3; however, the same
definition of serious bodily injury applies to all offenses that include an element of
serious bodily injury, such as second degree battery. La. R.S. 14:2 (C).

5
Clearly, the “substantial risk of death” must arise from the bodily injury suffered
by the victim, not the risk posed by the accident or collision.
8

unconsciousness, extreme pain, a substantial risk of death, or other factors.

There was no testimony regarding what injuries he suffered, e.g., broken

bones, lacerations, head bumps, and no medical records or photographic

exhibits of his injuries. Randarious did not testify and his mother testified

only that the injuries were “serious,” but she gave no details or description

of the injuries that made her draw that conclusion. Insofar as proof of

serious bodily injury, her testimony was conclusory. In the absence of such

direct evidence, the jury had only circumstantial evidence from which to

infer Randarious sustained “serious bodily injury” without having any idea

what injuries he sustained.

As noted, where proof of a fact is based on circumstantial evidence,

the evidence “must exclude every reasonable hypothesis of innocence” in

order to support the conviction. R.S. 15:438. Benavides concedes that

Randarious must have suffered some injury, but without knowing what the

injuries involved through medical testimony or records, a jury could only

have returned a guilty verdict for vehicular negligent injuring.

We first consider whether medical records or expert testimony are

required to prove “serious bodily injury.” Although such evidence would

have settled the question, several cases applying the same statutory

definition of “serious bodily injury” have held that it may indeed be proved

without testimony from a medical expert or medical records. Courts have

held that testimony from the victim or from a fact witness can be sufficient

to show serious bodily injury and support a conviction for first degree

vehicular negligent injuring. For example, in State v. Bellow, 08-259 (La.

App. 5 Cir. 7/29/08), 993 So. 2d 307, writ denied, 2008-2109 (La. 4/13/09),

5 So. 3d 162, the court held that the evidence was sufficient when one of the
9

victims testified that as a result of the collision, he suffered a cracked

sternum and was unable to work for two months, while his wife, the other

victim, testified that she too suffered various bodily injuries due to the

accident, and was hospitalized for 68 days. The court held that each victim’s

description of the injuries they suffered was sufficient evidence of serious

bodily injury.

The “serious bodily injury” element in first degree vehicular negligent

injuring is the same as that in second degree battery offenses. In State v.

Hall, 03-1384 (La. App. 5 Cir. 3/30/04), 871 So. 2d 558, the court concluded

that the testimony of a victim or a witness may present sufficient evidence to

show that a victim sustained a serious bodily injury required to support a

second degree battery conviction without any testimony of experts. Just as

in the case sub judice, the defendant argued that the state offered no

evidence of serious bodily injury by medical expert testimony or exhibits of

medical records, so surely the jury could only infer the severity of the

victim’s injuries. However, the court rejected this argument, finding the

victim testified regarding the beating and her injuries: she was sprayed with

mace and beaten and kicked by the defendants. The mace caused her eyes to

burn and was extremely painful, made breathing difficult, and made her feel

like her esophagus was swollen; she required 15 stitches to close the various

lacerations on her nose from being struck in the face with a bottle; her

treating physician sent her to a plastic surgeon regarding scarring from this

injury. The victim’s testimony alone describing these injuries was sufficient

to sustain the convictions for second degree battery.

The Hall case is distinguishable from this case, however, because

there is no testimony describing the injuries that Randarious suffered from
10

the accident, as well as no medical records or testimony regarding the

medical treatment he received.

In State v. Helou, 02-2302 (La. 10/23/03), 857 So. 2d 1024, the

Supreme Court reversed an appellate court finding that the evidence was

sufficient to prove the serious bodily injury element of second degree

battery. The victim was beaten by three men, including the defendant.

According to the victim’s testimony and eyewitness testimony, he bled so

much that his clothes were saturated in blood. A bystander, who was a

former army medic, testified that there was so much blood on the ground it

was difficult to tell where it came from. The state maintained that the large

amount of blood loss from the victim was sufficient evidence to infer that

the victim suffered serious bodily injury by virtue of suffering extreme

physical pain. The Supreme Court disagreed, finding that the presence of

blood alone does not satisfy the “serious bodily injury” element. It noted

that the state failed to offer any evidence of “extreme physical pain” by way

of testimony from the fact witnesses, or any testimony from medical

witnesses or medical records, which could have proven this factor. The

court concluded that loss of blood is not tantamount to “extreme physical

pain” Helou, supra at pp. 6-8, 857 So. 2d at 1028-29.

Therefore, while testimony from a medical expert or even medical

records would typically be dispositive of the issue of “serious bodily injury,”

it is not absolutely required. A victim can testify to his or her injuries and

what they involved, such as unconsciousness, extreme pain, protracted loss

or impairment of a bodily member, and so on, enabling the fact finder to

determine if the injuries fall within the category of “serious bodily injury.”

Likewise, a fact witness can also testify to many of those things.
11

On the other hand, the use of circumstantial evidence to prove serious

bodily injury can be problematic, as in Helou, supra, where even though the

victim lost a great amount of blood due to the beating, it did not show that he

suffered extreme pain, or substantial risk of death or disfigurement necessary

to prove a serious bodily injury. In fact, the extreme loss of blood in Hall

was due to a punch in the nose. While loss of a lot of blood could

accompany a serious bodily injury, that alone does not establish that the

injury involved extreme pain; a relatively minor injury could result in loss of

a lot of blood.

In this case, there was no medical evidence whatsoever, and

Randarious did not testify regarding his injuries or the medical treatment he

received; no witnesses described his injuries, and his mother’s testimony that

the injuries were serious was conclusory and unsupported by any description

of the injuries he sustained. Hence, the state’s case for “serious bodily

injury” is almost entirely circumstantial.

The state argues that the jury could infer serious bodily injury from

the following circumstances:

(1) The jury could infer that Cooper was unconscious as a result of an

injury from the collision, based on Trp. Dollins’ testimony that he

unsuccessfully screamed into the car to get the semiconscious or

unconscious victims in the front to open the door. This assumes that Cooper

was still in the backseat of the Mustang (unknown to Trp. Dollins) and he

would have responded if he were conscious.

(2) The jury could infer that Cooper suffered a life-threatening injury

because a medevac helicopter was used to carry him to a hospital in

Shreveport.
12

(3) The same inference was bolstered by the testimony of Cooper’s

mother, who testified that she was advised to go to Shreveport because her

son might not survive the injuries, and her testimony that her son spent four

weeks in the hospital recovering.

(4) The severe damage to the automobile evidenced the severity of the

impact, and the death of two healthy young men due to the severe impact,

implies that Cooper’s injuries were likely very serious.

We note that, analogous to the excessive blood loss in Helou, supra,

the use of an ambulance does not necessarily mean a life-threatening or

serious injury (Benavides was transported by ambulance to a hospital and he

was merely “shaken up”); however, the use of a medevac helicopter to take

Randarious to a hospital 100 miles away when there were ambulances

available at the scene and hospitals nearby implies that his injuries were very

serious or posed a substantial risk of death.

Therefore, we conclude that, based on the totality of the circumstantial

evidence and testimony, a jury could reasonably find that Randarious

suffered serious bodily injury beyond a reasonable doubt. While it would

have been preferable for the jury to hear medical testimony of his injuries

and medical treatment, or, at a minimum, testimony from Randarious

himself or an eyewitness, when taken as a whole, the circumstantial

evidence points to an injury that was life-threatening, in the sense of

involving a “substantial risk of death” to Randarious. Viewing the evidence

in the light most favorable to the prosecution, any rational trier of fact could

have found this essential element of the crime proven beyond a reasonable

doubt.

13

For these reasons, we conclude that this assignment of error is without

merit.

By his second assignment of error, Benavides alleges that the sentence

imposed by the trial court is excessive and violates the 8th Amendment

prohibition against cruel and unusual punishment.

Benavides, who is age 47, argues that the sentence is

unconstitutionally harsh, given the fact that he has no prior offenses, has a

wife and kids to support, and has been a productive member of the

community for 25 years. Appellate counsel argues that Benavides has

demonstrated remorse for this offense, and there appears to be a high

probability of rehabilitation. He argues that this 39-year sentence appears to

be grossly excessive and a needless infliction of pain and suffering.

The state contends that the court acted well within its discretion, as

the sentencing range for vehicular homicide is 5 to 30 years and for first

degree vehicular negligent injuring, up to 5 years.

Appellate review of sentences for excessiveness is a two-pronged

inquiry. First, the record must show that the court complied with La. C. Cr.

P. art. 894.1. The court need not list every aggravating or mitigating factor

so long as the record reflects that it adequately considered the guidelines.

State v. Marshall, 94-0461 (La. 9/5/95), 660 So. 2d 819. When the record

shows an adequate factual basis for the sentence imposed, remand is

unnecessary even in the absence of full compliance with the article. State v.

Lobato, 603 So. 2d 739 (La. 1992). No sentencing factor is accorded greater

weight by statute than any other factor. State v. Taves, 2003-0518 (La.

12/3/03), 861 So. 2d 144.

14

The second prong is constitutional excessiveness. A sentence violates

La. Const. art. 1, § 20, if it is grossly out of proportion to the seriousness of

the offense or nothing more than a purposeless and needless imposition of

pain and suffering. State v. Dorthey, 623 So. 2d 1276 (La. 1993). A

sentence is deemed grossly disproportionate if, when the crime and

punishment are viewed in light of the harm done to society, it shocks the

sense of justice or makes no reasonable contribution to acceptable penal

goals. State v. Guzman, 99-1753 (La. 5/16/00), 769 So. 2d 1158. The

sentencing court has wide discretion in imposing a sentence within statutory

limits, and such a sentence will not be set aside as excessive in the absence

of manifest abuse of that discretion. State v. Williams, 03-3514 (La.

12/13/04), 893 So. 2d 7. The issue is not whether some other sentence might

have been more appropriate, but whether the district court abused its

discretion. Id.; State v. Heins, 51,763 (La. App. 2 Cir. 1/10/18), 245 So. 3d

1165.

Prior to imposing sentence, the court stated that it had decided not to

order a PSI and he had looked at Benavides’ criminal record and found that

he had no criminal history. It had reviewed Art. 894.1 and found that

Subsections (A)(2) and (3) are applicable, namely that the defendant is in

need of correctional treatment that can be most effectively provided by

commitment to an institution and any lesser sentence would deprecate the

seriousness of the crime. The court stated that a suspended sentence was not

available because two lives were taken. It also found the following

aggravating factors listed in Art. 894 (B) applicable:

B (1) The offender’s conduct during the commission of
the offense manifested deliberate cruelty to the victim.

15

(5) The offender knowingly created a risk of death or
great bodily harm to more than one person.

(21) Other relevant aggravating factors: the court found
that driving west in the eastbound lane of the interstate was an
aggravating factor, and driving with a blood alcohol level of
.15% was an aggravating factor.

There were no applicable mitigating factors, the court concluded.

At the outset we note that Benavides’ sentence of imprisonment falls

within the statutory limits of La. R.S. 14:32.1 (B) and is thus not statutorily

excessive. It is clear that the district court considered the Art. 894.1 factors;

however, we have some difficulty understanding how Benavides exhibited

“deliberate cruelty” to the victims in this case. The additional aggravating

factors under B(21) are essentially the factual elements of the offense. It is

also unfortunate that the court did not order a PSI, so we have little

background information regarding Benavides, other than he is 47 years old,

married, and has minor children. He has no prior criminal record and stated

that he was employed at the time of the accident. At the sentencing hearing,

when he spoke to the family of the victims, he exhibited remorse for his

actions and, after sentence was imposed, he requested the court to order

rehabilitation.

The court initially imposed concurrent sentences of 20 years and 19

years at hard labor on Counts 1 and 2, vehicular homicide convictions, and it

imposed a consecutive 3-year sentence for the first degree vehicular

negligent injuring. The court stated that it was initially inclined to make the

homicide sentences consecutive because of the loss of two young lives, but it

ordered them concurrent since Benavides was a first-time offender. When

the state objected, pointing out that the statute mandated a consecutive

sentence for each homicide conviction, the court ordered the two sentences
16

to run consecutively, but amended the 3-year sentence for first degree

vehicular negligent injuring to make it concurrent.

In 2015, the sentencing range for a conviction of vehicular homicide

was imprisonment with or without hard labor for not less than five years nor

more than 30 years, and a fine not less than $2,000 nor more than $15,000.

In State v. LeBlanc, 09-1355 (La. 7/6/2010), 41 So. 3d 1168, the

Supreme Court reversed the appellate court and reinstated a 30-year

maximum sentence at hard labor for vehicular homicide with the first three

years to be served without benefit of probation, parole, or suspension of

sentence even though the defendant was a first offender with no prior record

and the mother of two adolescent boys. The mother had a combination of

eight different drugs in her system, including prescription and illegal drugs.

The court concluded that the defendant’s guilty plea was not necessarily a

reflection of her acknowledgment of the direct correlation between her drug

usage and the death of the victim or her own moral culpability. The court

concluded that the 30-year sentence gave the defendant incentives for

rehabilitation within the prison system to take advantage of early release on

parole.

In State v. Crenshaw, 39,586 (La. App. 2 Cir. 4/6/05), 899 So. 2d 751,

writ denied, 05-1531 (La. 1/21/06), 922 So. 2d 544, the defendant was

convicted by a jury of two counts of vehicular homicide and one count of

first degree vehicular negligent injuring. The trial court sentenced him to the

maximum of 20 years hard labor for each homicide and five years for first

degree negligent injuring, with all three sentences to be served

consecutively. At that time, imposition of consecutive sentences was

discretionary where there were two or more victims of vehicular homicide.
17

The defendant argued on appeal that the imposition of consecutive sentences

was constitutionally excessive. This court affirmed the consecutive

sentences, noting that the defendant’s record reflected that he was a

substantial risk to the safety of the community; this offense was his fourth

drunk driving incident, and his blood alcohol concentration level was .23%.

In this case, the midrange consecutive sentences imposed for two

vehicular homicide convictions are harsh, considering that Benavides is 47

years old and has a young family. Although Benavides has no prior criminal

record, he admitted that he had a drinking problem. He also admitted to

police that he had drunk seven or eight beers, which so impaired his

judgment that he entered I-20 traveling in the wrong direction against the

traffic. He was apparently so intoxicated that he never realized he was

driving the wrong way on the interstate despite nearly colliding head-on with

several vehicles. The blood test exhibit shows that his blood was drawn at

0052 a.m. (12:52 a.m.) – more than 1½ hours after the accident. That test

revealed a blood alcohol concentration level of .15%, which is nearly double

the legal limit of .08.

Based on the facts of the case and the tragic loss of two young lives,

we cannot conclude that the trial court abused its great discretion by

imposing harsh sentences. Nor do we find that this sentence shocks our

sense of justice. As in LeBlanc, supra, the long sentence should give the

defendant the incentive for rehabilitation and to take advantage of early

release on parole.

Accordingly, this assignment of error is without merit. The sentences

are not constitutionally excessive.

18

ERROR PATENT REVIEW

Our review of the record has disclosed several errors patent

discoverable on the face of the record and which require remand.

Illegal Sentence

The penalty for vehicular homicide includes:

imprisonment with or without hard labor for not less than five
nor more than thirty years, with at least three years of the
sentence of imprisonment shall be imposed without benefit of
probation, parole or suspension of sentence. If the operator’s
blood alcohol concentration is .15 per cent . . .then at least five
years of the sentence . . . shall be without benefit of probation,
parole, or suspension of sentence.

The sentencing transcript shows that the court failed to deny the

benefits of probation, parole, or suspension of sentence for a minimum of

three or five years as required by the statute.

Although the evidence showed that Benavides’ blood alcohol level

was .15%, the amended bill of information charged that he had a blood

alcohol concentration of .08% or more.6 Benavides was found guilty as

charged.

We therefore remand to the district court for resentencing to impose

the appropriate restriction of benefits in this case according to law.

Fines, Default Time, and Reparations

The trial court imposed fines for each of the convictions. For Count I,

the court ordered Benavides to pay “the mandatory restitution fine” of

$5,000 or in default serve 720 days’ imprisonment. It ordered the same fine

and default prison time for Count II. For the conviction of first degree

negligent injuring, the court ordered him to pay a $5,000 mandatory

6
The original bill charged that Benavides’ BOC was .15% or more.
19

restitution fine or, in default thereof, serve 180 days. The default time

sentences were ordered to run concurrently.

When the sentence imposed includes a fine or costs, “the defendant

shall be imprisoned for a specified period not to exceed one year.” La.

C. Cr. P. art. 884. In this instance, the court imposed $5,000 fines for each

vehicular homicide and, in default of payment, to serve 720 days in prison.

The default prison time is clearly in excess of one year.

We further note that it is well settled that an indigent defendant cannot

be subjected to default jail time in lieu of the payment of a fine, costs or

restitution. State v. Jarratt, 53,525 (La. App. 2 Cir. 6/24/20), 299 So. 3d

1202. A defendant’s indigent status may be discerned from the record. Id.

Benavides’ trial counsel, John Roa, was appointed by the court at the request

of the Indigent Defender office. On appeal, Benavides is represented by the

Louisiana Appellate Project. We conclude that this is presumptive evidence

of indigency.

Accordingly, we vacate those parts of the sentences that impose

imprisonment in default of payment of a fine or costs or restitution.

The court also ordered Benavides to pay $5,000 to Crime Victims

Reparations, to “cover the deceased victims’ medical bills, pay for

counseling of the survivors or pay for the counseling of Thomas Williams

and Jamerro May’s immediate family.” The court noted, however, that the

victims’ families will have to file for any of that money separately.

Apparently, the statutory authority to levy these costs on the

defendant is the Crime Victims Reparations Act, through which a person

who is a victim of a crime or his legal representative may apply to the Crime

Reparations Board for financial assistance. La. R.S. 46:1801 et seq. This
20

created a reparations fund composed of monies derived from appropriations

by the legislature and several other sources, including “All monies paid as a

cost levied on criminal actions, as provided by R.S. 46:1816(D) and (E).”

Subsection D (1)(a) levies “a cost of not less than fifty dollars for felonies . .

. on each criminal action . . . which results in a conviction.” “These costs

shall be paid by the defendant. No court may waive or suspend the

imposition of the costs . . . unless the defendant is found to be indigent.”

(Emphasis added.)

Because the record shows that Benavides is indigent, we vacate this

provision from his sentence. We note, however, that this ruling does not

affect the victims’ ability to apply for or receive benefits from the Crime

Reparations Board.

Finally, the instant Commitment Order incorrectly provides that

Benavides must serve each sentence (20 years, 19 years, 3 years) without

benefit of probation, parole, or suspension of sentence. This is contrary to

the sentencing transcript and the court minutes, and it does not show the

credit for time served prior to trial, which should be over 5½ years, that is,

since the day after the accident on September 26, 2015.

Accordingly, on remand, we order the court to issue an amended

Commitment Order that correctly reflects the time that must be served

without benefits, as will be determined on remand, and correctly reflects the

credit for time already served prior to sentencing. We further order the

district court to send a copy of the amended Commitment Order to the clerk

of this court within 45 days of the date this judgment is rendered.

21

CONCLUSION

For the foregoing reasons, we affirm Benavides’ convictions for first

degree negligent injuring and vehicular homicide. We affirm in part, vacate

in part, and remand in part regarding the sentences imposed. For all

sentences, due to Benavides’ indigency, we vacate the default time in lieu of

payment of the fines imposed. We affirm, in part, the sentences for

vehicular homicide, but vacate the imposition of sentences without

specifying a term to be served without benefit of probation, parole, or

suspension of sentence. We remand for resentencing for that purpose. On

remand, the court is to correct and amend the Commitment Order and send a

copy thereof to the clerk of this court within 45 days of this judgment.

Finally, due to Benavides’ indigency, we vacate the $5,000 fine or costs that

were ordered to be paid by him to the Crime Victims Reparation Fund.

In all other respects, the judgment of the district court is affirmed.

AFFIRMED IN PART, VACATED IN PART, REMANDED FOR

RESENTENCING.

22