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Filed 6/1/22 P. v. Macias CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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THE PEOPLE,

Plaintiff and Respondent,

v.

BENJAMIN MACIAS,

Defendant and Appellant.

C089939

(Super. Ct. No. 13F06550)

Based on the limited record before us, it appears that an October 2013 complaint 

charged defendant Benjamin Macias with possession of marijuana for sale, unlawful 

cultivation of marijuana, and being a felon in possession of a firearm. He was arraigned 

on the complaint on October 10, 2013, and released on bail later that same month. 

In December 2014, defendant pled not guilty, entered a general time waiver, and 

his case was set for a preliminary hearing in January 2015. The matter was continued 

several times at defendant’s request to July 16, 2015. Defendant was taken into federal 

custody on June 10, 2015, and his preliminary hearing was vacated. 
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In March 2017, defendant, who remained in federal custody, moved to dismiss this 

case under Penal Code1section 859b.2 The People opposed, and the court denied 

defendant’s motion. Thereafter, defendant remained in federal custody awaiting trial on 

his federal charges.

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In February 2019, defendant was present in custody and the trial court set his 

preliminary hearing for March 4, 2019. On March 2, 2019, defendant orally joined a 

Franks4 motion that was originally filed for a codefendant under section 1538.5 to 

traverse the affidavit, quash the warrant, and suppress evidence. The court denied the 

motion, and later denied defendant’s Marsden5 motion. 

The preliminary hearing was held on March 8, 2019. Prior to the hearing, the 

complaint was amended to include only the count for being a felon in possession of a 

firearm, and defendant was arraigned on the amended complaint and entered a not guilty 

plea. Following the preliminary hearing, defendant was held to answer, the court deemed 

the amended complaint an information, and defendant entered a not guilty plea to the 

information. 

On the first day of a jury trial on May 2, 2019, defendant moved to dismiss 

pursuant to section 1385 for violating his rights to a speedy trial. The court denied the 

motion. The jury was unable to reach a verdict and the court declared a mistrial. After 

1 Further undesignated section references are to this code.

2 Section 859b delineates time constraints within which the preliminary hearing 

must be conducted or the complaint dismissed and the defendant released.

3 Defendant did not file a section 1381.5 demand to be transferred within 90 days 

after being convicted in federal court for a trial on the pending state court charges. 

4 Franks v. Delaware (1978) 438 U.S. 154 [57 L.Ed.2d 667].

5 People v. Marsden (1970) 2 Cal.3d 118.
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the prosecutor indicated the People intended to retry defendant, defense counsel 

requested that the court dismiss the case under section 1385. The court declined to 

exercise its discretion to dismiss under section 1385. 

In July 2019, defendant pled no contest to the felon in possession offense. The 

prosecutor stated the following factual basis for defendant’s plea: “On or about 

October 8th of 2013 in Sacramento County, this defendant did willfully and unlawfully 

possess and have custody and control of a firearm, which was a .40 caliber handgun, 

having previously been convicted of a felony, which was a violation of Penal Code 

section 245[, subdivision] (a)(1), on September 4th of 2002 in a Sacramento superior 

court.” 

The court sentenced defendant to time served and no probation. The court 

imposed a $300 restitution fine, a $30 criminal conviction assessment, and a $40 court 

operations assessment, and waived all remaining fees and fines. Defendant timely 

appealed. 

DISCUSSION

We appointed counsel to represent defendant on appeal. Counsel filed an opening 

brief setting forth the facts of the case and requesting that this court review the record to 

determine whether there are any arguable issues on appeal. (People v. Wende (1979) 

25 Cal.3d 436.) Defendant was advised of his right to file a supplemental brief within 30 

days of the date of filing of the opening brief. More than 30 days elapsed, and we 

received no communication from defendant.

Having examined the record, we find no arguable error that would result in a 

disposition more favorable to defendant.

DISPOSITION

The judgment is affirmed.
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/s/ 

Robie, Acting P. J.

We concur:

/s/ 

Hoch, J.

/s/ 

Renner, J.