State v. Peralto

NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
30-SEP-2022
07:45 AM
Dkt. 68 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAIʻI
STATE OF HAWAIʻI, Plaintiff-Appellee,
v.
MONICA ALVES PERALTO, Defendant-Appellant
APPEAL FROM THE CIRCUIT COURT OF THE FIFTH CIRCUIT
(CASE NO. 5PC970000156)
SUMMARY DISPOSITION ORDER
(By: Hiraoka, Presiding Judge, Nakasone and McCullen, JJ.)
Defendant-Appellant, Monica Alves Peralto (Peralto)
appeals from the June 22, 2021 Order Re-sentencing Defendant
Monica Alves Peralto (Resentencing Order) filed and entered by
the Circuit Court of the Fifth Circuit (Circuit Court).1 This
appeal concerns a resentencing hearing conducted after the
Circuit Court granted Peralto's Hawaiʻi Rules of Penal Procedure
(HRPP) Rule 40 petition. On appeal, Peralto contends that the
Circuit Court erred and abused its discretion in sentencing
Peralto to consecutive, rather than concurrent, terms of
imprisonment.
Upon careful review of the record on appeal and the
briefs submitted by the parties, and having given due
consideration to the arguments advanced and the issues raised, we
resolve Peralto's contention of error as follows, and affirm.
1
The Honorable Randal G.B. Valenciano presided.
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Following a 1998 jury trial,2 Peralto and her then-
husband Mitchell Peralto were found guilty as charged of
Kidnapping and Murder in the Second Degree (Murder Second), and
Peralto was sentenced to an extended sentence of life
imprisonment with the possibility of parole (life with parole)
for Kidnapping and to an extended sentence of life imprisonment
without the possibility of parole (life without parole) for
Murder Second, with both sentences to run consecutively.
On direct appeal in 2001, the Hawaiʻi Supreme Court
affirmed Peralto's conviction of, and extended sentence for, the
Kidnapping count; but vacated the extended sentence for Murder
Second and remanded for resentencing. State v. Peralto, 95
Hawaiʻi 1, 8, 18 P.3d 203, 210 (2001), abrogated on other grounds
by State v. Kato, 147 Hawaiʻi 478, 465 P.3d 925 (2020).
On remand in 2004, the Circuit Court resentenced
Peralto to an extended sentence of life with parole for
Kidnapping and to a non-extended sentence of life with parole for
Murder Second, with both sentences to run consecutively.
In 2019, following the supreme court's decision in
Flubacher v. State, 142 Hawaiʻi 109, 414 P.3d 161 (2018),3
Peralto filed a Rule 40 petition for relief, which the Circuit
Court granted in part, vacating her extended term sentence of
life with parole for Kidnapping and setting a resentencing
hearing.4
2
The Honorable George M. Masuoka presided over Peralto's 1998 trial
and sentencing, and the 2004 resentencing.
3
In Flubacher, the supreme court held that, pursuant to Apprendi v.
New Jersey, 530 U.S. 466 (2000), the fact-finder rather than the sentencing
judge must determine whether an "extended term sentence was necessary for the
protection of the public" for extended term sentencing under HRS § 706-662.
142 Hawaiʻi at 118, 414 P.3d at 170. The Flubacher decision applied to all
cases that were not "final" (affirmed on direct appeal) before the issuance of
Apprendi on June 26, 2000. Id. at 118, 414 P.3d at 170.
4
We take judicial notice of Peralto's Rule 40 petition filed in
Special Proceeding No. 5PR191000003. Hawai ʻi Rules of Evidence Rule 201; See
State v. Kwong, 149 Hawaiʻi 106, 117, 482 P.3d 1067, 1078 (2021) (noting that
appellate courts may take judicial notice of court records not part of the
record on appeal) (citation omitted) . According to the Circuit Court's
(continued...)
2
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At the June 10, 2021 resentencing hearing, Peralto was
resentenced to a non-extended 20-year sentence of imprisonment
for Kidnapping, the non-extended sentence of life with parole for
Murder Second remained the same, and the Circuit Court ordered
both sentences to run consecutively. Both the State and Peralto
requested the Circuit Court to run the sentences concurrently.
The Circuit Court explained its reasoning for consecutive
sentencing orally at the hearing, and in its subsequently issued
June 22, 2021 Resentencing Order that stated:
2. Considering the factors from HRS §706-606, the
factors on balance support consecutive sentencing .
Specifically:
a. The nature and circumstances of these two
offenses are highly serious or extreme.
(1) One of Defendant Peralto's motives in killing
[victim] is that she believed [victim] was
working as a police informant. This fact weighs
in favor of consecutive sentencing and is
relevant to two general factors: the nature and
circumstances of the offense; and the need for
the sentence imposed to reflect the seriousness
of the offense, to promote respect for law, and
to provide just punishment for the offense .
(2) The defendants killed [victim] by beating her,
binding her wrists, and taping her mouth shut.
Then, plastic bags were tied or taped around her
head. After the defendants bound and gagged her,
and kidnapped her from Patty Lingaton's
residence, they abandoned her body in an open
area not far from the Lingaton residence. She
eventually suffocated.
b. The following facts are relevant to the need for
consecutive sentencing, to protect the public from further
crimes of Defendant Peralto, and to afford adequate
deterrence to criminal conduct. Defendant Peralto engaged
in extreme illegal behavior and there is a need to protect
the public from her; and to deter her and others from this
behavior in the future. Consecutive sentencing promotes
respect for the law; and reflects the seriousness of
Defendant Peralto beating another person and thereafter,
taking that person's life; and provides just punishment.
Although [victim] survived being beaten by the Defendants at
Patty Lingaton's residence, the Defendants continued on with
4
(...continued)
February 11, 2021 Order Granting in Part Petitioner's April 30, 2014 Petition
for Post-Conviction Relief, despite the holding in Flubacher, Peralto did not
assert the argument made in her Rule 40 Petition that she was entitled to a
jury determination of consecutive sentencing.
3
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their plan to kill her, by thereafter suffocating her to
death. Consecutive sentencing in this case also promotes
the concept that those who cooperate with law enforcement,
such as informants, are protected by the law.
3. This Court expresses no opinion as to whether
consecutive sentencing in this case will result in a
sentencing disparity, when compared to other cases in
Hawaiʻi in which defendants have been convicted [sic]
kidnapping and murder.
4. On balance, the factors in HRS §706-606 weigh
in favor of consecutive sentencing in this case .
(Emphases added).
On appeal, "[s]entencing decisions are reviewed under
the abuse of discretion standard." State v. Hussein, 122 Hawaiʻi
495, 503, 229 P.3d 313, 321 (2010). Under HRS § 706-668.5(2)
(2014),5 when determining whether to impose multiple terms of
imprisonment concurrently or consecutively, a court "shall
consider the factors set forth in [HRS §] 706-606." When
imposing consecutive terms of imprisonment, "a court must state
its reasons as to why a consecutive sentence rather than a
concurrent one was required." Lewi v. State, 145 Hawaiʻi 333,
350, 452 P.3d 330, 347 (2019) (quoting Hussein, 122 Hawaiʻi at
509, 229 P.3d at 328).
[T]he dual purposes behind the requirement that
reasons be stated for a court's imposition of a
consecutive sentence are to "(1) identify the facts
or circumstances within the range of statutory factors
that the court considered, and (2) confirm for the
5
HRS § 706-668.5 states in pertinent part:
§ 706-668.5 Multiple sentence of imprisonment. (1)
If multiple terms of imprisonment are imposed on a
defendant, whether at the same time or at different times,
or if a term of imprisonment is imposed on a defendant who
is already subject to an unexpired term of imprisonment, the
terms may run concurrently or consecutively. Multiple terms
of imprisonment run concurrently unless the court orders or
the statute mandates that the terms run consecutively.
(2) The court, in determining whether the terms
imposed are to be ordered to run concurrently or
consecutively, shall consider the factors set forth in
section 706-606.
4
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defendant, the victim, the public, and the appellate
court that the decision was deliberate, rational, and fair."
Id. (internal brackets omitted) (quoting State v. Kong, 131
Hawaiʻi 94, 102-03, 315 P.3d 720, 728-29 (2013)).
"'Absent clear evidence to the contrary, it is presumed
that a sentencing court will have considered all factors before
imposing concurrent or consecutive terms of imprisonment under
HRS § 706–606.'" Kong, 131 Hawaiʻi at 102, 315 P.3d at 728
(brackets omitted) (quoting Hussein, 122 Hawaiʻi at 503, 229 P.3d
at 321). However, "the sentencing court 'is not required to
articulate and explain its conclusions with respect to every
factor listed in HRS § 706–606[,]'" but rather must "'articulate
its reasoning only with respect to those factors it relies on in
imposing consecutive sentences.'" Lewi, 145 Hawaiʻi at 350-51,
452 P.3d at 347-48 (quoting Kong, 131 Hawaiʻi at 102, 315 P.3d at
720).
Peralto raises numerous arguments why a consecutive
sentence was inappropriate, including: that Peralto had
"essentially no criminal record" prior to these offenses; that
the Circuit Court based her sentence on "facts that were
incorrect or had no bearing on consecutive sentencing," citing
State v. Vellina, 106 Hawaiʻi 441, 106 P.3d 364 (2005);6 that the
Circuit Court erroneously concluded that consecutive sentencing
was necessary to protect the public; that the Circuit Court did
not explain its reasoning for consecutive sentencing per State v.
6
In Vellina, the supreme court held that where there was nothing in
the record to support the circuit court's conclusion that the defendant sold
stolen firearms for drugs, and the court "'exceeded the bounds of reason'" in
sentencing the defendant to consecutive sentences. 106 Hawai ʻi at 450, 106
P.3d at 373 (citation omitted). There was no trial in Vellina, no pre-
sentence investigation report (PSI), and the prosecutor did not offer proof to
substantiate the allegation. Id. Here, the record reflects that the updated
PSI prepared for the 2021 resentencing included the PSI from Peralto's 1998
sentencing that contained a description of the incident. A court may consider
arrest reports and "other hearsay 'information furnished to the court in a
presentence diagnosis and report.'" State v. Pantoja, 89 Hawaiʻi 492, 498,
974 P.2d 1082, 1088 (App. 1999) (citations and brackets omitted). Thus, the
fact that Peralto thought the victim was an informant was properly in the
record before the Circuit Court to consider for purposes of consecutive
sentencing. See id.5
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Barrios, 139 Hawaiʻi 321, 389 P.3d 916 (2016) and "failed to
adequately specify how an additional 20 years was warranted";7
that the Circuit Court should have considered that Peralto was
"raped, assaulted, molested by several prison staff members and
police officers while in custody" and that Peralto was "an
exemplary inmate" who completely turned her life around; that the
remaining HRS § 706-606 factors were "given short shrift by the
court"; and that the Circuit Court "was confused as to whether it
had discretion to remove the 'consecutive' designation from the
sentences" Peralto had previously received.
Here, there is no indication in the record that the
Circuit Court did not independently determine that consecutive
sentencing was appropriate, or that the Circuit Court was
confused about whether it had the discretion to not impose
consecutive sentencing. At the resentencing hearing, the Circuit
Court stated, it "look[ed] at this case," and it "believe[d] that
consecutive sentencing [wa]s appropriate" based on its review of
the HRS § 706-606 factors. The Circuit Court's Resentencing
Order is clear and does not indicate any confusion, and reflects
an analysis of all the sentencing factors the Court deemed
appropriate and applicable. The Circuit Court is presumed to
have considered all factors before imposing the consecutive
sentence. See Kong, 131 Hawaiʻi at 102, 315 P.3d at 728.
Even though the Circuit Court is "not required to
articulate and explain its conclusions with respect to every
factor listed in HRS § 706-606," Lewi, 145 Hawaiʻi at 350-51, 452
P.3d at 347-48, the record reflects that the Circuit Court
focused on the nature and circumstances of the offense under HRS
§ 706-606(1), to reflect the seriousness of the offense, to
promote respect for the law, and to provide just punishment for
7
In Barrios, the supreme court held that prior to imposing multiple
consecutive sentences, a sentencing court must explain its rationale for each
consecutive sentence. 139 Hawaiʻi at 337, 389 P.3d at 932. The supreme court
vacated the defendant's sentence because the circuit court failed to
adequately explain its rationale for each of the six consecutive sentences it
imposed. Id. at 338, 389 P.3d at 933. This case did not involve imposition
of multiple consecutive sentences, and Barrios is inapposite.
6
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the offense under HRS § 706-606(2)(a). The Circuit Court cited
Peralto's motive for killing the victim based on Peralto's belief
that the victim "was working as a police informant"; the
"extreme" circumstances of the offense where the defendants
killed the victim "by beating her, binding her wrists, and taping
her mouth shut," tying plastic bags around the victim's head; and
that the defendants "bound and gagged" the victim, who
"eventually suffocated." The Court considered the need to deter
criminal conduct under HRS § 706-606(2)(b) and to protect the
public from further crimes of the defendant under HRS § 706-
606(2)(c), by referring to Peralto's "extreme illegal behavior,"
that warranted a "need to protect the public" from Peralto, and
"to deter her and others from this behavior in the future[.]"
Id. The Court pointed out that even after the victim "survived
being beaten" by the defendants, they "continued on with their
plan to kill her, by thereafter suffocating her to death." Id.
Finally, the Court explained that: "Consecutive sentencing in
this case also promotes the concept that those who cooperate with
law enforcement, such as informants, are protected by the law."
In summary, the Circuit Court sufficiently articulated its
reasoning with respect to the HRS § 706-606 factors that it
relied on in imposing Peralto's consecutive sentence. Id.; see
also Kong, 131 Hawaiʻi at 102, 315 P.3d at 728.
The Circuit Court did not reference the hardships that
Peralto endured while incarcerated or her prior criminal record,
and the Circuit Court was not required to do so. See Kong, 131
Hawaiʻi at 102-03, 315 P.3d at 728-29 (citing Hussein, 122 Hawaiʻi
at 509-10, 229 P.3d at 327-28); see also State v. Fetuao, No.
CAAP-XX-XXXXXXX, 132 Hawaiʻi 183, at *4 (App. Feb. 28, 2014)
(SDO) (citing Kong, 131 Hawaiʻi at 103, 315 P.3d at 729)
("Although the Circuit Court did not specifically address certain
facts in the record that may have weighed in Fetuao's favor with
respect to other HRS § 706–606 factors, the Circuit Court is not
required to do so."). The Circuit Court is only required to
"identify[] the facts or circumstances within the range of
statutory factors that the court considered . . . ," and the
7
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Circuit Court did so in this case. Lewi, 145 Hawaiʻi at 350-51,
452 P.3d at 347-48. We therefore conclude that the Circuit Court
did not abuse its discretion in imposing consecutive sentences in
resentencing Peralto. See Hussein, 122 Hawaiʻi at 503, 229 P.3d
at 321; Kong, 131 Hawaiʻi at 102-03, 315 P.3d at 728-29.
For the foregoing reasons, the June 22, 2021 Order Re-
sentencing Defendant Monica Alves Peralto, filed and entered by
the Circuit Court of the Fifth Circuit, is affirmed.
DATED: Honolulu, Hawaiʻi, September 30, 2022.
On the briefs:
/s/ Keith K. Hiraoka
Kai Lawrence, Presiding Judge
(Kai Law),
for Defendant-Appellant. /s/ Karen T. Nakasone
Associate Judge
Tracy Murakami,
Deputy Prosecuting Attorney, /s/ Sonja M.P. McCullen
County of Kauaʻi, Associate Judge
for Plaintiff-Appellee.
8