Opinion
2d Crim. B324948
03-26-2024
THE PEOPLE, Plaintiff and Respondent, v. RAUL OSCAR ALAMAR, Defendant and Appellant.
Claudia Y. Bautista, Public Defender, William Quest, Deputy Public Defender, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Noah P. Hill and Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Superior Court No. CR30871 County of Ventura, Paul W. Baelly, Judge
Claudia Y. Bautista, Public Defender, William Quest, Deputy Public Defender, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Noah P. Hill and Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.
GILBERT, P. J.
Raul Oscar Alamar appeals a judgment following a resentencing hearing required by Penal Code section 1172.7. In 1993, after his guilty plea to multiple felonies, Alamar was sentenced to 62 years four months in prison. His sentence included a three-year term for a Health and Safety Code section 11370.2 enhancement, which was later invalidated by the enactment of section 1172.7 in 2022. At the section 1172.7 resentencing hearing, the trial court removed the three-year enhancement, but resentenced him to the same aggregate sentence as his original sentence. Because the court did not make the necessary findings to support its resentencing decision, we are compelled to reverse.
All statutory references are to the Penal Code unless otherwise stated.
FACTS
After midnight on October 26, 1992, Alamar, then age 29, drove to a parking lot near a hotel. He parked near a car in which 14-year-old Cyndi J. and her 17-year-old boyfriend were sitting. Alamar held a gun to the boyfriend's head and said he would blow his head off unless Cyndi J. got into Alamar's car. Cyndi J. complied and went to the back seat of Alamar's car as Alamar and another man drove away.
After several minutes, the car stopped. Alamar forced Cyndi J. to orally copulate him twice, and he forced her to inhale a line of cocaine. Alamar then committed another act of forced copulation. He then forced her to remove her jeans and he raped her.
Alamar got into the driver's seat. Alamar's male associate got into the back seat and orally copulated Cyndi J. and then raped her. He tried to sodomize her, but she managed to push him away. He then forcibly raped her for a second time.
Cyndi J. was placed in the trunk of the car for approximately two hours as the car was being driven around the area. She was eventually released. Alamar apologized to her and drove her home.
Police arrested Alamar at his home where they found several firearms and a packet of cocaine.
Alamar entered into a negotiated plea agreement. He pled guilty to kidnapping (§ 207, subd. (a)) (count 1); two counts of oral copulation in concert (§ 288a, subd. (d)) (counts 5 and 14); two counts of rape in concert (§ 264.1) (counts 11 and 17); transportation or selling a controlled substance (Health & Saf. Code, § 11352) (count 21); forcing a minor to ingest cocaine (id., § 11352) (count 22). He admitted that he kidnapped the victim for the purpose of committing counts 5, 11, 14, and 17 (§ 667.8, subd. (a)), and used a firearm in committing those offenses (§ 12022.3, subd. (a)). He admitted a prior narcotic conviction (Health & Saf. Code, § 11370.2); a prior serious felony conviction (§ 667, subd. (a)); and two felony convictions for which he served separate prison terms (§ 667.5, subd. (b)). He was sentenced to an aggregate sentence of 62 years four months in prison.
In 2022, the Legislature enacted section 1172.7 which declared, with certain exceptions, that enhancements imposed pursuant to Health and Safety Code section 11370.2 were invalid. (§ 1172.7, subd. (a).) In September 2022, Alamar filed a "petition to resentence and strike legally invalid enhancements." He argued that his "three year Health and Safety Code section 11370.2 enhancement must be eliminated from his sentence"; that he was 61 years old and "has not been convicted of any new offenses during his prison term." He was in an "honor dorm" because of his good conduct in prison and his "pro-social behavior and work skills." He requested a new reduced sentence of 38 years four months.
Alamar introduced statements of support from Donald Montgomery, a former inmate; from a minister from the Pentecostal Church of God; and from a correctional officer. He presented certificates showing his completion of academic education courses, including his completion of a course in the "use and misuse of substances," and an adult education course. He presented extensive records showing his completion of job assignments while in prison and evidence of his good behavior there. He produced a 1993 psychological report as mitigating evidence.
In opposition, the People argued, "While the sentence enhancement under Health and Safety Code section 11370.2 must be struck under recent laws, defendant's sentence should be restructured to substantially reflect the sentence this court lawfully imposed." The People requested a new sentence of an aggregate term of 62 years four months. They claimed Alamar performed poorly on probation and parole in the past. He did not provide parole plans at his last parole hearing. He had prison rules violations in 2022 and 2006 for "mutual combat" and "threatening staff." In 2018, he had a rules violation for possession of "metal instruments." The 1993 probation report noted that Alamar had "a lengthy history of delinquency and criminal conduct dating back to 1975." His prior convictions included burglary in 1975; felony theft in 1983; and robbery, grand theft, and possession for sale of cocaine in 1986. The probation officer in 1993 wrote that Alamar "shirks responsibility onto cocaine." A psychologist in a 1993 report wrote, "Alamar is susceptible to deviant and bizarre behavior when he is under the extended use of cocaine."
The trial court resentenced Alamar by striking the three-year enhancement under Health and Safety Code section 11370.2. It found the judge who issued the original sentence had a valid reason to sentence Alamar to 62 years four months. His crimes were horrific and violent. The victim is still traumatized. The court modified and restructured his sentence to reach an aggregate sentence of 62 years four months that was originally imposed. It increased the gun enhancement under section 12022.3, subdivision (a). It said, "I'm going to go ahead and give that the high term of five years. That adds the exact three years that was taken off by the elimination of the Health and Safety Code section giving him a total fixed term of 62 years and four months."
DISCUSSION
Did the Court Make the Required Findings?
Section 1172.7 requires courts to eliminate enhancements that are no longer legally valid. The statute also provides that "[r]esentencing pursuant to this section shall result in a lesser sentence than the one originally imposed as a result of the elimination of the repealed enhancement, unless the court finds by clear and convincing evidence that imposing a lesser sentence would endanger public safety." (§ 1172.7, subd. (d)(1), italics added.) It limits the court's authority to reimpose the original sentence unless the court makes a finding that the defendant is currently dangerous. The statute provides that the court should consider factors involving Alamar's "risk for future violence." (Id., subd. (d)(3).) Our review is limited to the findings the trial court made on the record.
The trial court found Alamar's 1992 offenses were "horrific" and violent. It imposed the same aggregate sentence that was originally imposed. It said, "Judge McGrath was in a better position to know what the appropriate sentence should be than me looking back and reflecting on this case 40 years later."
But the statute requires the trial court to impose a "lesser sentence than the one originally imposed" unless "the court finds by clear and convincing evidence that imposing a lesser sentence would endanger public safety." (§ 1172.7, subd. (d)(1).) The record does not reveal whether that was the intent of the trial court. The issue is not whether Alamar was dangerous when he committed his offense three decades ago, or what the original trial judge found. Instead, it is whether Alamar is currently dangerous and whether he presents a "risk for future violence."
The trial court apparently relied on the aggravated circumstances of the 1992 offenses as the only relevant factor. But "the circumstance that the offense is aggravated does not, in every case, provide evidence that the inmate is a current threat to public safety." (In re Lawrence (2008) 44 Cal.4th 1181, 1213.) "[T]he aggravated nature of the crime does not in and of itself provide some evidence of current dangerousness to the public." (Id. at p. 1214.) The court must consider "postincarceration history, . . . his or her current demeanor and mental state." (Ibid.)
If the trial court determines that resentencing does not result in a lower sentence, section 1172.7 requires the trial court 1) to make a finding that the defendant is currently dangerous, and 2) to support that finding with clear and convincing evidence.
The finding that a three decades' old commitment offense was horrific does not satisfy section 1172.7's requirements. (In re Lawrence, supra, 44 Cal.4th at pp. 1213-1214; People v. Belmontes (1983) 34 Cal.3d 335, 348-349.)
In our Supreme Court's most recent case involving sentencing standards, the court held,"' "Defendants are entitled to sentencing decisions made in the exercise of the 'informed discretion' of the sentencing court." '" (People v. Salazar (2023) 15 Cal.5th 416, 424.)"' "A court which is unaware of the scope of its discretionary powers can no more exercise that 'informed discretion' than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant's record." '" (Ibid.) In such cases, appellate courts should not "speculate" that the trial court must have impliedly made an essential, but omitted, sentencing finding. (Id. at p. 429.) Where the trial court does not make the findings required by statute, and does not understand its sentencing authority and discretion, "the appropriate remedy is to remand the matter to allow the sentencing court to exercise its discretion in the first instance." (Id. at p. 432, italics added.) Moreover, there were additional sentencing errors.
Section 1172.7, subdivision (d)(3), provides, "The court may consider postconviction factors, including, but not limited to, the disciplinary record and record of rehabilitation of the defendant while incarcerated, evidence that reflects whether age, time served, and diminished physical condition, if any, have reduced the defendant's risk for future violence, and evidence that reflects that circumstances have changed since the original sentencing so that continued incarceration is no longer in the interest of justice." (Italics added.)
Alamar claimed he was rehabilitated because he had completed rehabilitation and education training programs. He was a different man than the 29 year old who committed the 1992 crimes. He was now 61 years old. His older age was a relevant factor for the court to consider in determining whether he was currently dangerous. (In re Morganti (2012) 204 Cal.App.4th 904, 927.) The age of the crime was another relevant factor. (People v. Thai (2023) 90 Cal.App.5th 427, 434 ["Assuming for purposes of argument the 1997 offense was egregious, those facts alone do not demonstrate [defendant] was a risk to the community over 24 years later"].) Alamar presented evidence of rehabilitation, "realistic parole plans," and evidence of "support" from friends. (In re Van Houten (2023) 92 Cal.App.5th 1, 37.)
Gabriel Esquilin, a minister from the Pentecostal Church of God, said he has known Alamar for over 25 years. He said, "Alamar is sincere while taking full responsibility for his actions. Although society may never let him forget, I commend Mr. Alamar for wanting to press on in hopes of a better future. . . . I look forward to working with Raul upon his release . . . ." The minister said his church had a "rehab program" and they find jobs for men.
Montgomery said, "Upon his release, . . . I am gifting a Ford Explorer to him." Alamar wants to have a landscaping business when he is released. "To this end, I have collected necessary landscaping tools and equipment for him." "Over the years, Raul matured and overcame his demons." Alamar was placed in the prison's "honor dorm" for prisoners selected for their "pro social behavior and work skills deemed an asset to the facility." Alamar has been sober for "the past 29 years." He was a "dorm porter," which is a trusted position in prison.
Alamar's counsel quoted from the 2021 statement of Correctional Officer S. Venturini who said, "Alamar's character and demeanor towards others is a positive asset to the Facility G population, and his behavior towards developing a positive program is consistent with his strive and effort towards a positive rehabilitation. . . . I believe that given the opportunity, Alamar will be a productive member of society."
The record does not reveal whether the trial court considered this evidence. It appears the court confined its inquiry to the following areas: 1) its assumption that the original trial judge properly sentenced Alamar for the 1992 crimes; 2) that those 1992 crimes were "horrific"; and 3) its statement that "[a]nd last I took into consideration the letter that was written by the victim . . . ." But by so confining its inquiry, the court did not make the findings required by statute. Nor did it provide the basis for the court to determine whether Alamar is currently dangerous. (In re Lawrence, supra, 44 Cal.4th at pp. 1213-1214; In re Van Houten, supra, 92 Cal.App.5th at p. 37 [" 'the unchanging factor of the gravity of petitioner's commitment offense has no predictive value regarding [the defendant's] current threat to public safety' "]; People v. Thai, supra, 90 Cal.App.5th at p. 434.)
Where a defendant presents relevant and extensive evidence of postconviction rehabilitation, the trial court must consider it in determining whether the defendant is currently dangerous. (In re Lawrence, supra, 44 Cal.4th at p. 1214; People v. Lozano (2016) 243 Cal.App.4th 1126, 1133.) It must also consider "the passage of time" and defendant's current mental "attitude." (In re Shaputis (2008) 44 Cal.4th 1241, 1255.) Because section 1172.7 highlights a number of mitigating sentencing factors, the court is "obligated to consider" evidence presented on these factors. (People v. Jones (1985) 164 Cal.App.3d 1173, 1181.)
Here we stated the factors the trial court should consider on remand. But we emphasize that it is in the court's sole discretion to decide the weight, if any, to give those factors. We mention them because the court stated it was relying on the trial court's findings that were made over 30 years ago.
DISPOSITION
The judgment is reversed. The sentence is vacated and the matter is remanded to the trial court for resentencing.
I concur: BALTODANO, J.
YEGAN, J., Concurring:
I concur in the judgment under compulsion of California Supreme Court precedent. (See People v. Arreguin (2023) 89 Cal.App.5th 58, 63-64 (conc. opn. of Yegan, J.).) I do point out, however, that once again, a strong case can be made that any error is harmless within the meaning of the California Constitution. We review the action taken by the superior court, not its reasoning, even if erroneous. (See, e.g., People v. Gibson (1987) 195 Cal.App.3d 841, 853.) And we should not be impeaching the trial court's ruling with its contemporaneous remarks. (Patarak v. Williams (2001) 91 Cal.App.4th 826, 830.)
The Legislature is reducing sentences and the prison population. It is concerned about the rehabilitation of prisoners and whether they are currently dangerous. What about the victim of appellant's horrific and violent sex crimes? She is a 14-year-old girl. She is traumatized to this day and, unfortunately for her, she is "sentenced" to life with these memories. Where does she go to have her "sentence" reduced? There is no mention of victim's rights in Penal Code section 1172.7. They are apparently irrelevant.
In its zeal to mitigate what it perceives to be overly harsh sentences, the Legislature may have forgotten that the safety of the community is the highest law, i.e., salus populi suprema lex. (Gilmer, Cochran's Law Lexicon (5th ed. 1973) p. 265.)
This is a form over substance reversal. And if and when appellant does not obtain relief, he will again appeal. This is a waste of time, money, and judicial resources.