People v. Alatorre CA4/3 ( 2023 )

Filed 3/9/23 P. v. Alatorre CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G060755
v. (Super. Ct. No. 19WF1594)
CASSEY DELGADO ALATORRE, OPINION
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Orange County, Patrick
H. Donahue, Judge. Affirmed in part, reversed in part, and remanded.
Avatar Legal and Jason L. Jones, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Charles C. Ragland, Assistant Attorney General, Eric A. Swenson, Warren J.
Williams and Christine Y. Friedman, Deputy Attorneys General, for Plaintiff and
Respondent.
* * *
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This appeal concerns the Three Strikes law (Pen. Code, §§ 667,
subds. (b)-(i), 1170.12) and other sentencing issues. Cassey Delgado Alatorre was
convicted of first degree murder, robbery, possession of a firearm as a felon, and related
firearm enhancements, and the trial court found he had committed two prior strikes. At
sentencing, the court struck the two priors for purposes of some but not all counts and
sentenced Alatorre to a total term of 50 years to life.
Alatorre argues that the trial court abused its discretion in partially denying
his motion to strike the two priors, that his case must be remanded for resentencing under
recent amendments to sections 654 and 1385, and that the abstract of judgment must be
corrected to accurately reflect the sentence imposed by the court. We reject his first
argument but agree on the remaining issues. We therefore affirm the judgment but
remand the matter for resentencing as outlined below.
FACTS
Alatorre shot and killed a man while robbing him of fentanyl. An
information charged Alatorre with robbery felony murder (count 1; § 187, subd. (a)),
robbery (count 2; §§ 211, 212.5, subd. (c)), and possession of a firearm by a felon
(count 3; § 29800, subd. (a)(1)). As to counts 1 and 2, the information alleged two
firearm enhancements (§ 12022.53, subds. (b), (d)), and as to count 3, it alleged two prior
strikes (§§ 667, subds. (d), (e)(2)(A), 1170.12, subds. (b), (c)(2)(A)) and one prior serious
felony conviction (§ 667, subd. (a)(1)), all arising out of a 2012 case.
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All further undesignated statutory references are to this code.
2
A jury found Alatorre guilty of all three counts and found the two firearm
enhancements to be true. The trial court found Alatorre’s prior convictions to be true.
Alatorre filed a motion pursuant to People v. Superior Court (Romero)
(1996) 13 Cal.4th 497 (Romero) asking the trial court to strike his two prior strikes,
which consisted of two kidnapping convictions arising out of the same 2012 car theft. In
that case, Alatorre stole a vehicle that was left running in a back alley, apparently
unaware that there were two minor children seated in the backseat. According to the
Romero motion, when Alatorre realized the children were in the car, he pulled the vehicle
over and fled the scene. He drove the vehicle only about 420 feet, the children were not
hurt, and the car was not damaged. Alatorre pleaded guilty to two counts of kidnapping
(§ 207, subd. (a)) and one count of unlawfully taking a vehicle (Veh. Code, § 10851).
The experienced trial judge granted Alatorre’s request to strike those
kidnapping convictions for purposes of sentencing on counts 1 and 2, but not count 3. In
striking the priors for purposes of counts 1 and 2, the court reasoned that both strikes
arose from the same incident, Alatorre stopped the car after discovering there were
children in the backseat, and the crime was “on the lower level of the kidnapping
spectrums.” The court did not explain why it declined to strike the priors for purposes of
count 3.
The trial court then sentenced Alatorre to a total term of 50 years to life. As
to count 1 (first degree felony murder), he received 25 years to life, plus an additional
25 years to life for the firearm enhancement. As to count 2 (robbery), he received a
five-year aggravated term, plus an additional 25 years to life for the firearm
enhancement, to run concurrently with count 1; the court then stayed this portion of the
sentence under section 654. As to count 3 (possession of a firearm by a felon), the court
imposed a third-strike sentence of 25 to years to life, to run concurrently with count 1.
Alatorre filed a timely notice of appeal.
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DISCUSSION
1. The Romero Motion
Alatorre contends the trial court abused its discretion in denying his
Romero motion as to count 3. According to Alatorre, his two prior kidnapping
convictions fall outside the spirit of the Three Strikes law since both convictions arose
out of a single act (the taking of a vehicle), and he had no intent to kidnap the children.
The Three Strikes law is a sentencing scheme designed to increase the
prison terms of repeat felons. (See §§ 667, subds. (b)-(i), 1170.12.) In effect, when a
defendant is convicted of a felony, and it is pleaded and proved he had committed two or
more prior “violent” or “serious” felonies, the Three Strikes Law mandates that his
sentence be “an indeterminate term of life imprisonment.” (§ 667, subd. (e)(2)(A);
§ 1170.12, subd. (c)(2)(A).)
Although a trial court is presumed to have acted properly whenever it
sentences a defendant in accordance with the Three Strikes law (People v. Carmony
(2004) 33 Cal.4th 367, 376 (Carmony)), it has the power to dismiss one or more prior
strike convictions in the interests of justice (Romero, supra, 13 Cal.4th at pp. 529–532).
For example, if both strike offenses are based on a single act against the same victim, the
court must dismiss one of the offenses; treating those offenses as separate strikes would
be inconsistent with the spirit of the Three Strikes law. (People v. Vargas (2014)
59 Cal.4th 635, 637–639 [where prior convictions of robbery and carjacking were based
on single act of taking car from victim, trial court abused its discretion by treating those
convictions as separate strikes].) By comparison, if both strike offenses are based on a
single act against multiple victims, the court need not strike one. (People v. Rusconi
(2015) 236 Cal.App.4th 273, 280 (Rusconi) [two prior offenses of vehicular manslaughter
arising from a single incident qualified as separate strikes because there were multiple
victims].)
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We review a trial court’s decision whether to strike a prior felony
conviction for abuse of discretion. (Romero, supra, 13 Cal.4th at p. 532.) ‘““The burden
is on the party attacking the sentence to clearly show the sentencing decision was
irrational or arbitrary”’” (Carmony, supra, 33 Cal.4th at p. 376), and there is a strong
presumption that any sentence conforming to the Three Strike law’s sentencing norm is
both rational and proper (id. at p. 378). “In light of this presumption, a trial court will
only abuse its discretion in failing to strike a prior felony conviction allegation in limited
circumstances,” such as where the trial court was not aware of its discretion to dismiss a
prior strike, where the court considered impermissible factors in declining to dismiss a
prior strike, or where no reasonable person could disagree the defendant falls outside the
spirit of the Three Strikes law scheme. (Id. at p. 378.)
Alatorre contends the trial court abused its discretion in declining to strike
his prior strike convictions as to count 3. According to Alatorre, both kidnappings
resulted from the single act of Alatorre taking a vehicle, and he never intended to kidnap
anyone. We are not persuaded.
Although the prior convictions arose from the same incident, the fact there
were two separate kidnapping victims increased the danger associated with Alatorre’s
misconduct; the trial court was therefore acting within its discretion when it treated those
convictions as multiple strikes. (See Rusconi, supra, 236 Cal.App.4th at p. 280 [“an
offender who injures more than one victim in a single act of violence is more culpable
than the offender who only injures a single victim and may be punished separately with
respect to each victim”].) As for Alatorre’s claim that he lacked the “intent[] to kidnap,”
his guilty pleas to the kidnapping charges establish he had the requisite criminal intent.
The record contains no indication that the trial court relied on
impermissible factors or that it was unaware of its discretion to strike. To the contrary,
the court plainly understood it had the discretion to strike the prior conviction allegations
and in fact did so on a count-by-count basis. (See People v. Garcia (1999) 20 Cal.4th
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490, 499 [“a trial court has discretion in a Three Strikes case to strike prior conviction
allegations on a count-by-count basis”].) Although the court did not state its reasons for
declining to strike the priors as to count 3, it was under no obligation to provide an
explanation. (In re Large (2007) 41 Cal.4th 538, 546 & fn. 6.) On this record, Alatorre
has failed to satisfy his burden of establishing that the court’s sentencing decision was
irrational or arbitrary.
2. Remaining Issues
Alatorre next contends this case should be remanded (1) so the trial court
can exercise its discretion under recently enacted amendments to section 654, which give
courts discretion to select a principal sentence as the unstayed count, (2) so the court may
resentence him in accordance with recently enacted amendments to section 1385, which
lists the factors courts must consider when deciding whether to strike enhancements in
the interests of justice, and (3) so the court may correct the abstract of judgment to reflect
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the oral pronouncement of the sentence.
The Attorney General agrees that remand is appropriate so the trial court
can exercise its discretion under section 654, and that amended section 1385 applies to
any resentencing by the trial court. The Attorney General also does not oppose
Alatorre’s request to correct the abstract of judgment to reflect the oral pronouncement of
sentence. We concur and therefore remand this matter for resentencing.
DISPOSITION
We affirm all convictions suffered by Alatorre. We reverse the judgment
for resentencing only on the issues discussed. On remand, at a new sentencing hearing to
2
Alatorre notes that the abstract of judgment fails to reflect that the sentence
on counts 1 and 3 was imposed concurrently, and it also incorrectly states that the total
time imposed on count 2 is five years (when in fact it is five years with a 25-year-to-life
enhancement).
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be conducted in accordance with section 1385, the trial court shall have the opportunity
to exercise its new statutory discretion to select a principal sentence as to the unstayed
count under section 654. The court may also, in its sound discretion, modify any aspect
of Alatorre’s sentence in order to achieve its sentencing objectives.
In all other respects, the judgment is affirmed. After resentencing, the trial
court shall prepare an amended abstract of judgment and forward a certified copy to the
Department of Corrections and Rehabilitation.
GOETHALS, J.
WE CONCUR:
O’LEARY, P. J.
BEDSWORTH, J.
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