People v. Alatorre CA4/3 ( 2023 )

Filed 4/18/23 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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, G061507
v. (Super. Ct. No. 20NF0719)
EDGAR FERNANDO ALATORRE, OPINION
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Orange County, Gregg
L. Prickett, Judge. Affirmed.
Joanna McKim, 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, Christopher P. Beesley and
Kristen Kinnaird Chenelia, Deputy Attorneys General, for Plaintiff and Respondent.
This is the second opinion we have issued in this case. In the first, we
affirmed appellant’s convictions for aggravated assault and other crimes but reversed his
sentence and remanded for resentencing pursuant to newly-amended Penal Code section
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1170. That section makes the middle term the presumptive sentence for a term of
imprisonment and generally requires any aggravating factors used to support imposition
of an upper term to be stipulated to by the defendant or found true beyond a reasonable
doubt by the judge or jury. However, when the trial court resentenced appellant in this
case, it imposed the upper term on a firearm enhancement based on an aggravating factor
– injury to the victim – that was neither stipulated to nor found true beyond a reasonable
doubt. Appellant contends this constitutes reversal error, but we cannot agree. Although
the misstep violated the tenets of section 1170, the error was harmless because the record
overwhelmingly and undisputedly shows appellant’s firearm use caused injury to the
victim, which is a legitimate aggravating factor for purposes of the firearm enhancement.
We therefore affirm the judgment.
FACTS
A complete recitation of the facts is set forth in our prior opinion. (See
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People v. Alatorre (Jan. 11, 2022, G059547) [nonpub. opn.] (Alatorre I).) To
summarize, appellant got into a heated argument with his former girlfriend Mia R. and
her friend Kelsey S. when they went to appellant’s residence to retrieve a television Mia
had lent him. During the row, appellant struck Kelsey on her head with a handgun. On
impact, the gun discharged a single bullet that grazed Kelsey just above the ear, leaving a
two-inch gash. The wound was not life threatening but it did require stitches.
1
Unless noted otherwise, all further statutory references are to the Penal Code.
2
We granted respondent’s unopposed request to take judicial notice of the appellate record in that
case.
2
Four days after the incident, the police executed a search warrant at
appellant’s residence. Among other things, they found a loaded semiautomatic handgun
and four baggies of methamphetamine in his bedroom.
Following a jury trial, appellant was acquitted of attempted murder, but he
was convicted of assaulting Kelsey with a semiautomatic firearm and found to have
personally used a firearm during that offense. (§§ 245, subd. (b), 12022.5, subd. (a).) He
was also convicted of three different possession offenses stemming from the warrant
search. (§ 29800, subd. (a)(1); Health & Saf. Code, §§ 11370.1, 11378.) The trial court
sentenced appellant to the upper term of nine years for the assault, plus the upper term of
ten years for the firearm enhancement. In addition, the court imposed a combined term
of four years and eight months on the remaining counts, but it stayed execution of a
three-year term on one of those counts pursuant to section 654. Thus, the full length of
appellant’s prison sentence was 20 years and 8 months.
FIRST APPEAL
We affirmed appellant’s convictions but reversed his sentence due to the
trial court’s failure to apply section 654 more broadly to include not just one, but two of
the offenses arising from the warrant search. (Alatorre I, supra, G059547, at pp. 16-19.)
In remanding the matter for full resentencing, we ordered the trial court to apply the
current version of section 1170, which was amended during appellant’s appeal. (Id., as
modified by Feb. 3, 2022 order denying petn. for rehg.) As noted at the outset, that
section generally bars an upper term sentence unless the factors used to support it have
been stipulated to by the defendant or found true beyond a reasonable doubt by the judge
or jury. (§ 1170, subds. (b)(1)-(3).)
RESENTENCING
At the resentencing hearing, the trial court imposed the middle term of six
years on the assault count, a three-year reduction from its original sentence. But the court
reimposed the upper term of 10 years for the firearm enhancement. After applying
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section 654, it then added one year on the remaining counts, bringing appellant’s
aggregate sentence to 17 years in prison.
In formulating its sentencing decision, the court analyzed all of the
aggravating and mitigating factors that were potentially applicable to appellant’s
sentence. (See Cal. Rules of Court, rules 4.421 & 4.423.) The court also allowed
appellant to make a statement on his own behalf. The court accepted appellant’s
representations that he was a hardworking father before he started using drugs and that he
was trying to turn his life around in prison. But the court was skeptical of appellant’s
claim that he did not intentionally discharge his gun in assaulting Kelsey.
Irrespective of that issue, the court determined appellant deserved the upper
term on the firearm enhancement because his gun use caused Kelsey’s injury, “as
illustrated by the exhibit and testimony received at trial.” That was a reference to a
photographic exhibit showing Kelsey’s headwound and appellant’s admission about
striking her in the head with his gun. While acknowledging appellant was acquitted of
attempted murder, the court was concerned “this was an extremely dangerous situation
which easily could have resulted in the death of another[.]”
DISCUSSION
Appellant asserts the trial court prejudicially erred in relying on Kelsey’s
head injury to impose the upper term on the firearm enhancement because the jury made
no findings as to whether the injury was actually attributable to his gun use. The
Attorney General concedes the jury was never called upon to decide the precise cause of
Kelsey’s headwound, but he contends that is immaterial because the uncontroverted
evidence proved it was from appellant’s gun use, which is why he was deserving of
aggravated punishment. Respondent has the better argument.
Effective January 1, 2022, section 1170 provides, “The court may impose a
sentence exceeding the middle term only when there are circumstances in aggravation of
the crime that justify the imposition of a term of imprisonment exceeding the middle
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term, and the facts underlying those circumstances have been stipulated to by the
defendant, or have been found true beyond a reasonable doubt at trial by the jury or by
the judge in a court trial.” (§ 1170, subd. (b)(2), as amended by Senate Bill No. 567
(Stats. 2021, ch. 731, § 1.3).) The statute is designed to ensure a defendant is not
subjected to enhanced punishment for aggravating factors he neither personally admitted
nor were found true beyond a reasonable doubt by a trier of fact. (See Cunningham v.
California (2007) 549 U.S. 270, 274-275 [examining the constitutional ramifications of
increasing a defendant’s sentence beyond the statutorily prescribed term based on factors
that are not admitted or proven beyond a reasonable doubt].)
As a preliminary matter, we note appellant never objected to the trial
court’s consideration of Kelsey’s headwound as an aggravating factor on the firearm
enhancement. Because appellant did not challenge the basis for the trial court’s decision
to impose the upper term on the enhancement, he forfeited his right to challenge that term
on appeal. (People v. Anderson (2023) 88 Cal.App.5th 233, 242; People v. Flowers
(2022) 81 Cal.App.5th 680, 683, review granted Oct. 12, 2022, S276237.)
However, we need not hang our hat on the forfeiture rule because, as
appellant admits, a trial court’s reliance on an improper aggravating factor to impose an
upper term is subject to harmless error analysis. (People v. Sandoval (2007) 41 Cal.4th
825.) Although a variety of standards have been used to assess harmless error in this
context (see People v. Dunn (2022) 81 Cal.App.5th 394, review granted Oct 12, 2022,
S275655), it is universally accepted that an upper term sentence will be upheld on appeal
if the reviewing court is convinced beyond a reasonable doubt the jury would have found
every improper factor on which the trial court relied to be true beyond a reasonable
doubt. (People v. Lopez (2022) 78 Cal.App.5th 459, 465-467.) In other words, if the
evidence of the improper factors is so overwhelming as to be beyond dispute, then it
doesn’t matter if the defendant did not admit them, or the jury did not find them to be
true. (Ibid.)
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At appellant’s resentencing hearing, the trial court alluded to a variety of
aggravating factors. For example, in denying appellant probation, the trial found it
significant appellant had previously suffered several gun-related convictions. And, at
another point in the hearing, the court suggested appellant may have targeted Kelsey due
to her sexual orientation. But when it came to sentencing appellant on the section
12022.5 firearm enhancement, the court cited a single factor in aggravation: Appellant’s
firearm use caused Kelsey’s injury. The court did not cite any other aggravating factors –
or any mitigating factors – in connection with appellant’s use of his gun.
Under section 12022.5, a defendant is subject to enhanced punishment if he
“personally uses a firearm in the commission of a felony[.]” For purposes of the statute,
the word “uses” is broadly defined to include brandishing, hitting someone with, or
discharging a firearm. (In re Tameka C. (2000) 22 Cal.4th 190, 197.) Since the
enhancement can be triggered by mere brandishing, neither physical injury to the victim
nor the intent to harm is required. (Id. at pp. 198-199.) Therefore, if the defendant’s
conduct goes beyond brandishing and results in physical injury to the victim, it may be
considered aggravated for purposes of imposing the upper term on the enhancement.
(People v. Brown (2000) 83 Cal.App.4th 1037, 1043-1044; People v. Douglas (1995) 36
Cal.App.4th 1681, 1691-1692.)
Appellant’s conduct went far beyond brandishing. By his own admission,
he struck Kelsey with his gun while he was arguing with her and Mia at his residence.
The evidence also undisputedly established the gun discharged around that point. After
that, Kelsey became frightened because blood was pouring down her neck from a two-
inch gash on the side of her head. She said she had a hard time stopping the bleeding
until the wound was treated later on at the hospital. This evidence firmly established a
causal connection between appellant’s gun use and Kelsey’s injury. And in closing
argument, even defense counsel admitted Kelsey’s head wound was attributable to
appellant’s use of the gun.
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On this record, we are convinced beyond a reasonable doubt that had the
question been put to them, the jurors, using that same standard, would have found
appellant’s firearm use went beyond mere brandishing and resulted in physical injury to
Kelsey. Indeed, there is no “‘“evidence that could rationally lead to a contrary finding.”
[Citation.]’ [Citation.]” (People v. Lopez, supra, 78 Cal.App.5th at p. 465.) That being
the case, the trial court’s reliance on Kelsey’s head injury to impose the upper term on the
firearm use enhancement is not cause for reversal. (People v. Myles (2012) 53 Cal.4th
1181, 1222 [upholding upper term sentence on firearm enhancement based on the
strength of the state’s evidence and counsels’ arguments regarding the pertinent
aggravating factors, even though those factors were neither stipulated to nor found true
beyond a reasonable doubt].)
DISPOSITION
The judgment is affirmed.
BEDSWORTH, J.
WE CONCUR:
O’LEARY, P. J.
MOORE, J.
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