Opinion
D073508
12-14-2018
THE PEOPLE, Plaintiff and Respondent, v. BRIAN DANIEL ALATORRE, Defendant and Appellant.
Anthony J. Dain, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Senior Assistant Attorney General, Steve Oetting, and Kristen Ramirez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. JCF36633) APPEAL from a judgment of the Superior Court of Imperial County, Poli Flores, Jr., Judge. Affirmed. Anthony J. Dain, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Senior Assistant Attorney General, Steve Oetting, and Kristen Ramirez, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Brian Daniel Alatorre of three counts of kidnapping during a carjacking (Pen. Code, § 209.5, subd. (a); counts 1, 2 & 3), and found true allegations that Alatorre personally used a knife in the commission of the offenses within the meaning of section 12022, subdivision (b)(2). The trial court found true that Alatorre suffered one prior strike conviction within the meaning of sections 667, subdivisions (b)-(j), and 1170.12. In February 2018, it sentenced Alatorre to nine years plus 42 years to life in state prison, consisting of a consecutive term of seven years to life doubled to 14 years to life for each of the three counts, plus a consecutive three-year term for each knife-use enhancement under section 12022, subdivision (b)(2). On appeal, Alatorre, who was 20 years old at the time of the offenses, asks this court to remand the matter for a hearing under People v. Franklin (2016) 63 Cal.4th 261 (Franklin) so he can make a record of information relevant to his eventual youth offender parole hearing. He further contends we should reverse the three-year knife-use enhancements imposed under section 12022, subdivision (b)(2) because he was not convicted of carjacking or attempted carjacking. We affirm the judgment.
Undesignated statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
Because the details of Alatorre's crimes are not pertinent to resolution of the two issues presented on appeal, we may omit the usual factual recitation. We need only say that in July 2016, Alatorre entered a vehicle that the three victims, a mother and her two young-adult children, were taking to Mexicali and, wielding a knife, told them to drive him to San Diego. During a stop for gas, one of the victims was able to tell a gas station clerk what was happening, and in response to the clerk's 911 call, police stopped the car and arrested Alatorre.
Before his sentencing, Alatorre moved to strike his one prior strike conviction. He argued he was likely impaired by drugs or alcohol based on his behavior during the crime and upon his arrest, though there were no toxicology tests to confirm that. He pointed out he did not use force or violence, he did not physically harm the victims, and he did not damage or permanently take their property. Alatorre relied on the fact he was 20 years old at the time of the offenses and had only one prior criminal conviction for a second degree robbery, based on his taking about $16 worth of beer and food from a Calexico supermarket in May 2016. The People opposed the motion, pointing out Alatorre committed a serious kidnapping of a family at knifepoint and held them for over 30 minutes; the victims were vulnerable, and feared for their own lives and that of their family members; the crime reflected planning, sophistication or professionalism; Alatorre had only been released from custody for his prior robbery offense for six days and was on probation when he committed the present crime and thus presented a high risk of danger to the public; and his crimes were of increasing severity.
Alatorre's sentencing hearing took place in February 2018. His counsel did not submit a sentencing memorandum. Observing in part that Alatorre used a knife against two victims during his robbery prior conviction and committed the present kidnapping offenses only days after his release from custody, the court declined to strike his prior conviction. It pointed out that Alatorre's present offenses were violent crimes involving three vulnerable victims who were highly traumatized by his actions, and Alatorre showed no empathy or sense of remorse. The court sentenced him to 14 years to life plus three years for the knife-use enhancement on each of counts 1, 2 and 3, for a total term of 42 years to life plus nine years. Alatorre filed this appeal.
DISCUSSION
I. Request for Limited Remand Under Franklin
Alatorre contends that section 3051 (Stats. 2013, ch. 312, § 4 (Sen. Bill No. 260)) and Franklin, supra, 63 Cal.4th 261, render him eligible for a youth offender parole hearing, and thus a limited remand is proper to permit him to present relevant mitigating evidence for use in that future hearing. We disagree.
Section 3051 does not allow Alatorre a youth offender parole hearing. Subdivision (h) of that section provides in part: "This section shall not apply to cases in which sentencing occurs pursuant to Section 1170.12, subdivisions (b) to (i), inclusive, of Section 667, or Section 667.61 . . . ." (§ 3051, subd. (h).) Under this subdivision, any offender sentenced under the "Three Strikes" law does not qualify for a youth offender parole hearing. (See People v. Contreras (2018) 4 Cal.5th 349, 359 [youth offender parole hearing is not available to juveniles convicted under the "One Strike" law and Franklin did not control for the defendants so sentenced in that case]; People v. Carter (2018) 26 Cal.App.5th 985, 994; People v. Phung (2018) 25 Cal.App.5th 741, 755 ["[section 2051] does not apply 'to three strikes sentences, one strike sentences, or LWOP sentences, or to those who commit certain additional offenses after reaching the age of [23]' "], quoting People v. Scott (2016) 3 Cal.App.5th 1265, 1278; In re Williams (2018) 24 Cal.App.5th 794, 800 [Section 3051 "excludes persons sentenced under section 1170.12, section 667, subdivisions (b) through (i), and section 667.61"].) Alatorre falls within that exception, having been charged and sentenced pursuant to sections 1170.12 and 667, subdivisions (b) through (i).
In his reply brief, Alatorre acknowledges that section 3051, subdivision (h) "arguabl[y]" applies to him, but maintains case law only describes it as exempting "three strikes sentences." He argues he has only one prior strike and was not given a three strikes sentence, so he remains eligible for parole and entitled to a Franklin limited remand. But principles of statutory interpretation compel a different conclusion. The statute broadly refers to offenders "in which sentencing occurs pursuant to" the Three Strikes laws, not only to individuals sentenced for a third strike. This is the unmistakable plain meaning of the statute, and the California Supreme Court has interpreted this language accordingly. (See Franklin, supra, 63 Cal.4th at p. 278 ["The statute excludes several categories of juvenile offenders from eligibility for a youth offender parole hearing [including] those who are sentenced under the Three Strikes Law (§§ 667, subds. (b)-(i), 1170.12)," italics added]; Connor v. First Student, Inc. (2018) 5 Cal.5th 1026, 1035 [where a statute's text evinces an unmistakable plain meaning, the court need go no further in interpreting the law].)
In sum, because Alatorre does not qualify for a youth offender parole hearing, we need not remand for a Franklin hearing.
II. Imposition of Three-Year Knife-Use Enhancements
Alatorre contends the trial court erred by imposing three-year enhancements on each of his counts under section 12022, subdivision (b)(2), which authorizes a one, two or three-year enhancement for a person convicted of carjacking or attempted carjacking who personally uses a deadly or dangerous weapon in the commission of the offense. Asserting he was convicted of kidnapping during a carjacking, not carjacking or attempted carjacking, Alatorre maintains the court should have imposed a one-year enhancement for each count under section 12022, subdivision (b)(1).
Section 12022, subdivision (b) provides in part: "(1) A person who personally uses a deadly or dangerous weapon in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for one year, unless use of a deadly or dangerous weapon is an element of that offense. [¶] (2) If the person described in paragraph (1) has been convicted of carjacking or attempted carjacking, the additional term shall be in the state prison for one, two, or three years." --------
The People respond that the trial court did not err, because though Alatorre was not convicted of either carjacking or attempted carjacking, the jury in convicting him of kidnapping during a carjacking necessarily found that he committed a carjacking. They point out the section does not reference section 215 (governing carjacking or attempted carjacking) and argue the enhancement should be applied based on the nature of the conduct, rather than the particular Penal Code violation. The People argue this court should look to the entire record of conviction and the nature of the conduct giving rise to Alatorre's convictions to determine which enhancement term should apply, similar to the analysis undertaken in People v. Guerrero (1988) 44 Cal.3d 343 (disapproved on other grounds in People v. Miles (2008) 43 Cal.4th 1074, 1093, fn. 14), which decided whether a prior burglary conviction was a serious felony and a strike.
To resolve Alatorre's contention, we look first to the nature of an enhancement, which the California Supreme Court described in People v. Ahmed (2011) 53 Cal.4th 156. Ahmed addressed how to deal with multiple enhancements based on a defendant's conduct during a single offense under section 654. (Ahmed, at p. 163.) In doing so, it explained: " 'Enhancements typically focus on an element of the commission of the crime or the criminal history of the defendant which is not present for all such crimes and perpetrators and which justifies a higher penalty than that prescribed for the offenses themselves.' [Citation.] '[T]here are at least two types of sentence enhancements: (1) those which go to the nature of the offender; and (2) those which go to the nature of the offense.' [Citation.] The first category typically enhances the sentence due 'to the defendant's status as a repeat offender.' [Citation.] 'The second category of enhancements, which are exemplified by those authorized under sections 12022.5 and 12022.7, arise from the circumstances of the crime and typically focus on what the defendant did when the current offense was committed.' " (Id. at p. 161.)
Ahmed further explained, "[E]nhancements are different from substantive crimes, a difference that affects how section 654 applies to enhancements. Provisions describing substantive crimes, such as the assault with a firearm in this case, generally define criminal acts. But enhancement provisions do not define criminal acts; rather, they increase the punishment for those acts. They focus on aspects of the criminal act that are not always present and that warrant additional punishment." (People v. Ahmed, supra, 53 Cal.4th at p. 163; see also People v. Kam Hing Wong (2018) 27 Cal.App.5th 972, 983; People v. Calderon (2013) 214 Cal.App.4th 656, 663, 665.) Ahmed carefully used the term "aspect" in part to avoid confusion with the phrase "elements of the crime" commonly used to described what must be proven to establish a crime. (Calderon, at p. 663, fn. 10, quoting Ahmed, 53 Cal.4th at p. 163, fn. 3.)
Section 12022, subdivision (b)(2) is designed to punish a specific category of conduct: use of a deadly or dangerous weapon during a carjacking. (People v. Calderon, supra, 214 Cal.App.4th at p. 664.) Such weapon use makes carjackings more lethal than they would otherwise be and thus the statute represents a legislative attempt to punish more severely those carjackings in which a dangerous or deadly weapon is used. (Id. at p. 665.) This purpose is reflected in the statute's legislative history, which shows that the " 'Legislature sought to impose a severe penalty' " so as "to combat a potentially violent and increasingly common crime." (Ibid.; People v. Coleman (2007) 146 Cal.App.4th 1363, 1369; see California Bill analysis of Sen. Bill No. 60 (1993-1994 Reg. Sess.) Sept. 10, 1993 ["The purpose of this bill is to reduce the number of carjackings by creating a new crime with harsh penalties"].)
The nature of enhancements as targeting not elements of a crime but aspects of a criminal act, as well as the obvious purpose of section 12022, subdivision (b)(2), compels us to conclude that the trial court properly applied the enhancement to Alatorre's section 209.5 offenses of kidnapping during the commission of his carjacking. Kidnapping during a carjacking occurs when a person, "during the commission of a carjacking and . . . to facilitate the commission of the carjacking, kidnaps another person who is not a principal in the commission of the carjacking . . . ." (§ 209.5, subd. (a).) "[A] violation of section 209.5 . . . requires a completed offense of carjacking." (People v. Jones (1999) 75 Cal.App.4th 616, 624-625; see also People v. Contreras (1997) 55 Cal.App.4th 760, 765.) The court instructed the jury in this case accordingly, telling them with CALCRIM No. 1204 that the People were required to prove for purposes of the section 209.5 offense that "[t]he defendant committed a carjacking" and instructing them on the elements of carjacking with CALCRIM No. 1650. Alatorre's crimes here involved the aspect of his use of a deadly or dangerous weapon in the commission of a carjacking, making his offenses much more lethal and warranting an enhanced sentence. That Alatorre also committed a kidnapping so as to facilitate the carjacking worsens the crime and does not minimize the carjacking in any way. To not apply the enhancement in these circumstances would be nonsensical in view of the enhancement's purpose.
Our conclusion is consistent with settled principles of statutory interpretation. " 'The court's role in construing a statute is to "ascertain the intent of the Legislature so as to effectuate the purpose of the law." [Citations.] In determining the Legislature's intent, a court looks first to the words of the statute. [Citation.] "[I]t is the language of the statute itself that has successfully braved the legislative gauntlet." [Citation.] [¶] When looking to the words of the statute, a court gives the language its usual, ordinary meaning. [Citations.] If there is no ambiguity in the language, we presume the Legislature meant what it said and the plain meaning of the statute governs.' " (People v. Mason (2002) 95 Cal.App.4th 221, 11, quoting People v. Snook (1997) 16 Cal.4th 1210, 1215.) The language of section 12022, subdivision (b)(2) broadly applies where the person using the weapon is "convicted of carjacking" without specifying any limitation. Alatorre's conviction, which encompasses both kidnapping and carjacking, falls within this language.
DISPOSITION
The judgment is affirmed.
O'ROURKE, J. WE CONCUR: McCONNELL, P. J. DATO, J.