In the Matter of the Personal Restraint of: Benjamin Lopez, Jr.

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
In the Matter of the Personal Restraint of:
BENJAMIN LOPEZ, JR.,
Petitioner.
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No. 36881-5-III
UNPUBLISHED OPINION
LAWRENCE-BERREY, J. — Benjamin Lopez, Jr., was convicted of being an
accomplice to second degree murder and drive-by shooting. He committed those crimes
when he was 17 years old. The trial court sentenced him to a middle standard range
sentence of 184 months.
In this personal restraint petition, Mr. Lopez seeks resentencing based on his
assertion that the trial court committed constitutional error by not understanding it could
sentence him below the standard range. The trial court’s thorough comments during
sentencing show it understood that teenagers are different and, despite this, imposed a
middle standard range sentence. Because Mr. Lopez fails to show he was actually and
substantially prejudiced by trial court error, we dismiss his petition.
FILED
FEBRUARY 8, 2022
In the Office of the Clerk of Court
WA State Court of Appeals, Division III

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FACTS
In 2011, 17-year-old Benjamin Lopez, Jr. assisted his brother, Abraham Lopez
Torres, in the drive-by shooting and killing of another person. He and his brother were
tried together. A jury convicted both men. It convicted Mr. Lopez, as an accomplice, of
second degree murder and drive-by shooting.
Sentencing
Sentencing occurred in January 2013. The State requested the maximum sentence,
arguing the shooting happened “on the main street in town during rush hour” and risked
hurting families and members of the community. Mot. for Relief from J., App. B
(Sentencing RP) at 32. It argued that the defendants showed no remorse for their crimes
and rehabilitation was “out the window,” so a maximum sentence was “the only way to
ensure maximum safety for the community.” Id. at 34.
Mr. Lopez noted that the most time he had spent in custody before the incident was
one month. He argued that based on the jury verdict on various charges and
enhancements, the jury had found Mr. Lopez’s brother was the shooter and Mr. Lopez’s
“participation in this was exceptionally minor, exceptionally minor.” Id. at 42. Based on
these factors, he argued a bottom-range “sentence of 134 months would more than satisfy

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the principles of adult sentencing, and that it [would] be an appropriate sentence in this
case.” Id.
The court extensively discussed what it considered “an abundance of tragedy” in
the case. Id. at 51. It noted that there was gang involvement on both the defendants’ and
the victim’s sides. The court also noted that Mr. Lopez’s parents had been “stalwart
supporters of their sons” during the proceeding, which “helped me understand and get
over the idea that kids get involved in gangs because their parents are negligent. These
are not, in my view, negligent parents. These are folks who were terrifically focused on
their children . . . .” Id.
The court discussed the science of brain development, explaining that “what
science is telling us is that the portions of the brain which are responsible for judgment,
making good decisions, are the parts that continue to develop into the early 20s.” Id. at
53. The court connected this impaired decision making with gang activity, opining that
the defendants it saw in gang-related violence almost invariably were in their teens or 20s
“[b]ecause they’re incapable physically of making appropriate judgments.” Id. at 54.
The court noted there was “tragedy and loss on every side” and it fell to the court
to determine the “appropriate punishment within a range.” Id. at 55. It expressed a
degree of gratitude “to the legislature for creating a range for this particular crime that’s

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broad enough that the court can respond to some of these impulses on each side.” Id.
Considering a standard range sentence of 134 to 234 months’ imprisonment, the court
sentenced Mr. Lopez to 184 months’ imprisonment with 36 months’ community custody,
finding “that a mid-range sentence is most appropriate here.” Id. at 56. The court
concluded by saying:
There is for me no joy in the process of sentencing these two young
men, whether that would be a low-end, a mid-end—middle—or high-end
sentence. It is just more, in my view, loss and waste of the time of human
beings. It is, in my view, also an appropriate response to this crime and to
the loss that they have inflicted.
Id.
CrR 7.8 Motion
On March 2, 2017, the Washington Supreme Court decided State v. Houston-
Sconiers, 188 Wn.2d 1, 20-22, 391 P.3d 409 (2017), holding that a sentencing court has
absolute discretion to impose a sentence below the guidelines range based on the
mitigating circumstances of a defendant’s youth. Mr. Lopez filed a motion for relief from
judgment under CrR 7.8 on June 26, 2017, requesting a new sentencing hearing. He
argued that Houston-Sconiers was a significant change in the law material to Mr. Lopez’s
case that warranted retroactive application.

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After several stays and continuances, the superior court determined the motion was
time barred and Mr. Lopez had not made a substantial showing he was entitled to relief.
The superior court relied on In re Personal Restraint of Meippen, 193 Wn.2d 310, 315,
440 P.3d 978 (2019), which held the petitioner failed to show actual and substantial
prejudice because he failed to show by a preponderance of the evidence that his sentence
would have been shorter if the sentencing court knew it had absolute discretion. The
superior court found that “on its face . . . it looks like this is Meippen all over again.”
Resp’t’s Suppl. Resp., Attach. A at 11. It noted that as in Meippen, Mr. Lopez’s counsel
argued for a low-end sentence and the sentencing court reviewed and discussed the
mitigating factors of youth but rejected a low-end sentence. It thus concluded Mr. Lopez
had not made a prima facie showing of actual and substantial prejudice. It denied the
CrR 7.8 motion and transferred it to this court for consideration as a personal restraint
petition.
After briefing, we stayed the petition pending our Supreme Court’s decisions in In
re Personal Restraint of Ali, 196 Wn.2d 220, 474 P.3d 507 (2020), cert. denied, 141 S.
Ct. 1754, 209 L. Ed. 2d 514 (2021), and In re Personal Restraint of Domingo-Cornelio,
196 Wn.2d 255, 474 P.3d 524 (2020), cert. denied, 141 S. Ct. 1753, 209 L. Ed. 2d 515
(2021). In these companion cases, the court held that the Houston-Sconiers decision

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applied retroactively, resolving or rendering moot many of the parties’ arguments in their
original briefing. The parties filed supplemental briefs addressing whether Mr. Lopez
could demonstrate actual and substantial prejudice from the sentencing court’s alleged
failure to consider the mitigating factors of youth.
ANALYSIS
ACTUAL AND SUBSTANTIAL PREJUDICE
Mr. Lopez contends he has demonstrated the trial court actually and substantially
prejudiced him by failing to comply with Houston-Sconiers and he must be resentenced.
We disagree.
In a personal restraint petition, the petitioner must show he is restrained under
RAP 16.4(b) and that the restraint is unlawful under RAP 16.4(c). In re Pers. Restraint of
Grantham, 168 Wn.2d 204, 212-13, 227 P.3d 285 (2010).
A petitioner is under a “restraint” if he is confined because of a judgment or
sentence in a criminal case. RAP 16.4(b). The restraint is unlawful if “[t]he conditions or
manner of the restraint of petitioner are in violation of the Constitution of the United
States or the Constitution or laws of the State of Washington.” RAP 16.4(c)(6). If the
alleged error is constitutional, the petitioner bears the burden of showing by a

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preponderance of the evidence that he was actually and substantially prejudiced by the
alleged error. In re Pers. Restraint of Davis, 152 Wn.2d 647, 671-72, 101 P.3d 1 (2004).
In general, a petitioner must file their personal restraint petition no more than one
year after the judgment becomes final. RCW 10.73.090(1). The time limit does not
apply in various circumstances, including if there is a significant change in the law,
which is material to the petitioner’s sentence and which must be applied retroactively.
RCW 10.73.100(6). During the pendency of this petition, our Supreme Court settled the
question of whether Houston-Sconiers was a significant change in the law that applied
retroactively, holding that it was. See Ali, 196 Wn.2d at 236; Domingo-Cornelio, 196
Wn.2d at 266-67. Because the Houston-Sconiers decision is material to Mr. Lopez’s
sentence, his petition is not time barred.
In Houston-Sconiers, our Supreme Court recognized that under the Eighth
Amendment to the United States Constitution, sentencing courts have absolute discretion
to consider exceptional downward sentences for juvenile offenders regardless of any
sentencing provision to the contrary. 188 Wn.2d at 19-21. The court listed factors the
sentencing court must consider, including the defendant’s immaturity, impetuosity, and
failure to appreciate risks and consequences; the nature of his surrounding environment
and family circumstances; the extent of his participation in the crime; the way familial

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and peer pressures may have affected him; how youth impacted any legal defense; and
any factors suggesting the child might be successfully rehabilitated. Id. at 23. To comply
with Houston-Sconiers, a sentencing court must “meaningfully consider[ ] youth and
know[ ] it has absolute discretion to impose a lower sentence . . . .” Domingo-Cornelio,
196 Wn.2d at 268.
Mr. Lopez asserts that there is no indication the sentencing court considered the
mitigating factors of his youth as identified in Houston-Sconiers or knew it had discretion
to impose an exceptional sentence based on those factors. He argues that the court’s
sentence in the middle of the standard range shows it was willing to consider mitigating
factors but failed to appreciate the scope of its discretion. This bald assertion of
prejudice, however, is insufficient; the defendant must show “the outcome would more
likely than not have been different had the alleged error not occurred.” Meippen, 193
Wn.2d at 316. This is a “threshold, prima facie burden.” Id. at 315.
In the cases in which our Supreme Court found resentencing was necessary, there
was evidence that strongly suggested the sentencing court would have gone below the
sentence imposed if it had thought a below standard-range sentence was available. In
Houston-Sconiers, the sentencing judge heard mitigating testimony about the defendant
and imposed a below-guidelines sentence, but “expressed frustration at his inability to

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exercise greater discretion over the sentences imposed.” 188 Wn.2d at 13. In Ali, the
sentencing judge similarly heard mitigating testimony about the defendant and imposed
the minimum standard range sentence, but noted that “‘the sentence that was imposed
was the lowest sentence that I legally felt I had the option of imposing in this case.’”
196 Wn.2d at 229. In Domingo-Cornelio, the record was silent as to whether the
sentencing judge considered any mitigating qualities of the defendant’s youth or knew she
had discretion to impose a lower sentence, but she imposed the lowest standard range
sentence when the State recommended the high end. 196 Wn.2d at 268. Our Supreme
Court took this as evidence that the court was willing to consider mitigating factors and
found it was more likely than not the defendant would have received a lesser sentence if
the sentencing court had complied with Houston-Sconiers. Id. at 268-69.
Conversely, in Meippen, the sentencing court considered and rejected a lower
sentence based on the mitigating qualities of youth. There, defense counsel argued for a
bottom-range sentence based on the defendant’s age, immaturity, and failure to appreciate
the consequences of his actions. 193 Wn.2d at 316. The trial court nonetheless imposed
a sentence that was at the top of the standard range, finding the defendant’s actions were
“cold and calculated.” Id. at 317. Our Supreme Court noted that while there was “a mere
possibility that the trial court could have departed from the [Sentencing Reform Act of

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1981, chapter 9.94A RCW] in light of Houston-Sconiers, mere possibilities do not
establish a prima facie showing of actual and substantial prejudice.” Id.
Here, unlike in Domingo-Cornelio, the record shows the sentencing court
extensively considered the mitigating factors of youth in sentencing Mr. Lopez. It
accepted and gave credence to research showing that brain development associated with
judgment and decision making continued into a person’s 20s. It discussed the interaction
between juveniles’ limited decision-making ability and their susceptibility to gang
influence, describing how Mr. Lopez and his brother had in a way “been taken advantage
of.” Sentencing RP at 55. It considered Mr. Lopez’s family circumstances based on
testimony from his brother’s declination hearing, observing he had the “stalwart
support[ ]” of his parents, who were not negligent but instead “terrifically focused on
their children.” Id. at 52. While the court did not consider a sentence outside the
guidelines range, it stated that the guidelines range was broad enough that it could
“respond to some of these impulses on each side.” Id. at 55. It expressed regret that the
sentence imposed would result in more loss for the brothers and their family, but
concluded it was “an appropriate response to this crime and the loss that they have
inflicted.” Id. at 56. As in Meippen, there is nothing in the record that suggests the
sentencing court would have departed from the standard range.

No. 36881-5-111
PRP of Benjamin Lopez
Mr. Lopez asserts that had the sentencing court understood its absolute discretion
under Houston-Sconiers; it would have imposed a sentence in the middle of Oto 234
months, "probably again in the middle at 117 months." Suppl. Br. of Petitioner at 11.
This is nothing more than speculation. The court expressed no desire to go below the
standard guidelines range and explicitly found "that a mid-range sentence is most
appropriate here." Sentencing RP at 56. Mr. Lopez raises no more than a mere
possibility that the sentencing court would have imposed a lower sentence in light of
Houston-Sconiers, which is not enough to establish a prima facie showing of actual and
substantial prejudice in his personal restraint petition. See Meippen, 193 Wn.2d at 317.
We therefore dismiss his petition.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
Lawrence-Berrey, J.,j
WE CONCUR:
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