Opinion
D057881 Super. Ct. No. SCD225530
12-19-2011
THE PEOPLE, Plaintiff and Respondent, v. ALBERTO ALATORRE, JR., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from a judgment of the Superior Court of San Diego County, Frank A. Brown, Judge. Affirmed.
A jury convicted Alberto Alatorre, Jr., of five counts of robbery under Penal Code section 211 (all undesignated statutory references are also to the Penal Code) and found true the allegation that he personally used a firearm (§ 12022.53, subd. (b)) as to counts 1, 4 and 5.
The court sentenced Alatorre to an aggregate prison term of 20 years 4 months. The court imposed the upper term of five years on count 1, and one year, or one-third the middle term, on counts 2 and 4, to be served consecutively. The court imposed the middle term of three years on counts 3 and 5, to be served concurrently. As for the three firearm enhancements found true, the court imposed the upper term of 10 years on count 1, and three years four months, one-third the middle term, on count 4. On the count 5 enhancement, the court imposed the upper term of 10 years to be served concurrently.
On appeal, Alatorre asserts (1) the prosecutor committed prejudicial misconduct during closing argument by exploiting the lack of evidence of motive that the prosecutor successfully moved to exclude before trial; (2) the court erred when, at the prosecution's request, it modified the jury instruction on personal use of a firearm; (3) the court erred when it failed to sua sponte instruct on the lesser enhancement of being armed with a firearm; and (4) the court erred in sentencing Alatorre to the upper term on count 1. We affirm.
FACTUAL BACKGROUND
A. People's Case 1. Count 1
On the morning of November 6, 2009, Alatorre went to the North Island Credit Union in Imperial Beach. Monica Lamountain was working there as a teller. Alatorre approached Lamountain and placed a black day planner on the counter. Alatorre opened the planner and revealed a black handgun, which was pointed at her. On the other side of the planner was a note, telling Lamountain to take all the cash out of her drawer and put it in two blue bank bags, which Alatorre handed to her. Lamountain believed the gun was a semi-automatic, and it looked very real to her. After Lamountain had put approximately $4,500 into the two bags, Alatorre put them in the planner and walked out of the credit union.
2. Counts 2 and 3
On December 2, 2009, Alatorre returned to the same credit union. Lamountain was again working as a teller, and Jennifer Rico was working at the station next to her. Alatorre bypassed Rico's station and walked up to Lamountain. Lamountain looked at Alatorre and stated, "You got to be kidding me." Alatorre smugly smiled and nodded his head yes.
Alatorre showed Lamountain a demand note that said he had a gun and tossed her two blue bank bags. Lamountain opened her drawer and began filling the bags. Lamountain also gave Rico a bag and told her to fill it with cash. Lamountain and Rico filled the bags with approximately $4,500 in cash. Alatorre took the bags and left the credit union. As he was leaving he said, "I'll be back."
3. Counts 4 and 5
On February 5, 2010, at approximately 3:00 p.m., Alatorre entered a Wells Fargo Bank in Chula Vista. Norma Acosta was standing behind Yvonne Plascencia, helping her with a customer. Alatorre, who was standing by Acosta's desk, motioned her to come over. Alatorre had a black day planner in his hand.
After Acosta arrived at her desk, Alatorre put the day planner on her desk and opened it. Inside was a black gun that looked like a semi-automatic, and it was pointing at Acosta. Acosta said, "Oh no." Alatorre nodded his head. Alatorre gave Acosta a blue bank bag and told her to put the money in it. Acosta was very nervous and began to hand approximately $200, which was all she had in her drawer, to Alatorre. Alatorre said, "No, put the money in the bag," which she did. Alatorre then told Acosta to go to the closest teller, which was Plascencia.
Acosta approached Plascencia and asked for her money. Plascencia screamed, "What?" Plascencia said she would not give her the money. Acosta again told Plascencia to give her the money because she was being robbed and Alatorre had a gun. Plascencia grabbed all of her money, totaling about $1,600, and gave it to Acosta. Acosta walked back to her desk and gave Alatorre the money. As soon as Alatorre left, Acosta pressed the alarm button.
4. Police investigation
Shortly after the last robbery, San Diego Police Detective Elias Estrada saw some photographs from the surveillance videos of the robberies. Estrada recognized Alatorre, who had previously attended the same church as Estrada. Estrada contacted the San Diego County Sheriff's Department and gave them Alatorre's name.
Sheriff's Detective Michael Nuemann watched the surveillance videos of the robberies. Detective Nuemann said the gun appeared to be a black, semi-automatic handgun. Detective Nuemann said the gun looked real in the videos, and, based on his experience, he believed it to be real.
Detective Nuemann participated in the search of Alatorre's apartment. The officers found clothing matching that worn by Alatorre during the robberies. No gun or day planner was found. Chula Vista Police Detective John English, who also participated in the search, found a bank bag in the trunk of a car Alatorre was using. The bag was hidden underneath the cardboard that separated the spare tire from the trunk.
Sheriff's Detective Michael Bravo testified concerning a recorded telephone conversation Alatorre had with his girlfriend. Alatorre asked if she had told them anything. Alatorre told her he did it for her so she would not need anything. He also asked if she told them it was him in the photographs. He asked about the search of the apartment and asked whether he had been on the news. Alatorre said they kept asking him about the gun and told her he had never owned a gun.
Sheriff's Detective Howard Kluge interviewed Alatorre. Alatorre initially admitted committing the first robbery. However, after Detective Kluge showed Alatorre photographs from the robbery that showed him with a gun, he started to backtrack from his admission. When Detective Kluge asked him about the gun, he said he had never owned one.
Detective Kluge showed Alatorre pictures from the second robbery. There was no gun visible in those photographs, and Alatorre immediately admitted committing that robbery. Detective Kluge showed him photographs from the third robbery where the gun was visible. Alatorre said he would not admit committing that robbery because he did not want to lie. Alatorre told him committing the robberies was not easy and he was nervous, scared and shaking. He said he committed the robberies for financial reasons. He wanted to support his family and also had to pay some traffic tickets and DMV fees.
B. Defense Case
Alatorre testified in his own defense. He stated that he lost his job in January 2009 and was receiving unemployment checks. He was responsible for paying the rent of $1,400 a month for the apartment he shared with his girlfriend. It was because of his financial difficulties that he committed the robberies.
The gun he displayed during the robberies was a fake gun. He bought a toy gun that was clear in color and spray painted it black. He testified that the reason he placed the gun in the day planner was because the trigger was broken and he did not want Lamountain to realize it was a fake gun.
After the first robbery, Alatorre destroyed the gun by running over it and then breaking it with his hand. He then threw it in a dumpster. He realized that he did not get enough money from the first robbery to deal with his financial problems so he bought another toy gun and repeated the process. He did not use the gun in the second robbery because he had been there before and he thought they would be scared.
On cross-examination, Alatorre admitted he had told Detective Kluge that he did not own a replica or toy gun. He also admitted that although he began robbing banks because of his financial problems, during that time period he also bought an expensive pair of shoes.
DISCUSSION
I. PROSECUTORIAL MISCONDUCT
Alatorre asserts the prosecutor committed prejudicial misconduct by commenting about a lack of evidence of motive, after successfully moving to exclude evidence that he committed the robberies to pay for his daughter's medical expenses. We conclude that Alatorre has forfeited this issue on appeal by failing to object and request a curative admonition. We further conclude, assuming this claim was not forfeited, the prosecutor's statement did not constitute prejudicial misconduct.
A. Background
Prior to trial, the People sought to exclude any evidence that Alatorre's motive in committing the robberies was to pay for medical care for his daughter. At the hearing on the motion, defense counsel represented to the court that Alatorre's daughter "was born with an issue with her hip where it was kind of separated from the joint. And they couldn't do surgery on her until she was two years old, I believe. She had surgery in May of 2002." Defense counsel argued this evidence was relevant because it raised an inference "[t]hat he was not using a real gun because he was not there to hurt anyone. He was there to help his daughter."
The court ruled that the evidence was not relevant "other than a sympathy factor" and ordered it excluded.
During her rebuttal portion of her closing argument, the prosecutor argued as follows:
"See the defendant for who he is. He is a manipulator. He's a conniver. He's violent. He's shown that he can be violent. And he doesn't care about anybody but himself. And he will do anything, and he will go to the greatest of lengths to accomplish what he needs and what he wants. And he has proven he'll use any means necessary. He will take a gun. He will put it in tellers—he'll display it to tellers. He will threaten them. And at the end of the day the laugh's on us. Don't let him fool you. Hold him accountable as charged." (Italics added.)
B. Applicable Legal Principles
A prosecutor in a criminal case can commit misconduct under either federal or state law. "A prosecutor's conduct violates the Fourteenth Amendment to the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process. Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to persuade either the trial court or the jury." (People v. Morales (2001) 25 Cal.4th 34, 44.)
Absent a fundamentally unfair trial under the federal Constitution, prosecutorial misconduct does not require reversal of the judgment unless it was prejudicial under state law, i.e., it is reasonably probable the defendant would have obtained a more favorable verdict absent the misconduct. (People v. Bell (1989) 49 Cal.3d 502, 534, 542; People v. Castillo (2008) 168 Cal.App.4th 364, 386; People v. Crew (2003) 31 Cal.4th 822, 839.) If the prosecutorial misconduct renders the defendant's trial fundamentally unfair under the federal Constitution, reversal of the judgment is required unless the misconduct is harmless beyond a reasonable doubt. (Castillo, at pp. 386-387, fn. 9; People v. Bordelon (2008) 162 Cal.App.4th 1311, 1323-1324.)
C. Analysis
1. Forfeiture
To preserve a claim of prosecutorial misconduct, a defendant must timely object and request a curative admonition unless an admonition would not have cured the harm caused by the misconduct. (People v. Hinton (2006) 37 Cal.4th 839, 863; People v. Earp (1999) 20 Cal.4th 826, 858.) Therefore, to avoid forfeiture of a claim of prosecutorial misconduct, a defendant generally "must make a timely objection, make known the basis of his objection, and ask the trial court to admonish the jury." (People v. Brown (2003) 31 Cal.4th 518, 553.) Alternatively stated, "[a]s a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion—and on the same ground—the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety." (People v. Samayoa (1997) 15 Cal.4th 795, 841.)
However, "[a] defendant will be excused from the requirement of making a timely objection and/or a request for an admonition if either would have been futile. [Citation.] In addition, the failure to request that the jury be admonished does not forfeit the issue for appeal if an admonition would not have cured the harm caused by the misconduct or the trial court immediately overrules an objection to alleged misconduct such that the defendant has no opportunity to make such a request." (People v. Cole (2004) 33 Cal.4th 1158, 1201.)
We conclude that Alatorre forfeited this contention on appeal by not timely objecting to the purported improper argument on the ground of prosecutorial misconduct and requesting an admonition that the jury disregard the impropriety. (People v. Hinton, supra, 37 Cal.4th at p. 863; People v. Earp, supra, 20 Cal.4th at p. 858; People v. Brown, supra, 31 Cal.4th at p. 553; People v. Samayoa, supra, 15 Cal.4th at p. 841.) Alatorre asserts that this issue was not forfeited because it would have been futile to make an objection, given the court's ruling on the People's motion in limine. Alternatively, Alatorre argues that if the issue was forfeited, defense counsel was ineffective for failing to object and request an admonition. We reject these contentions.
The objection would not have been futile, as the court could have admonished the jury to disregard the prosecutor's argument, thus lessening any minimal prejudice that may have arisen from those comments. Alatorre only highlights one line in the prosecutor's entire argument that he claims constituted misconduct. Moreover, it was not prejudicial ineffective assistance of counsel for counsel to not object because, as we shall explain, post, the comments did not amount to prejudicial misconduct.
2. Merits
" ' " '[A] prosecutor is given wide latitude during argument. The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom. [Citations.] It is also clear that counsel during summation may state matters not in evidence, but which are common knowledge or are illustrations drawn from common experience, history or literature.' [Citation.] 'A prosecutor may "vigorously argue his case and is not limited to
'Chesterfieldian politeness' " [citation], and he may "use appropriate epithets . . . ." ' " ' " (People v. Stanley (2006) 39 Cal.4th 913, 951-952.)
Alatorre focuses on one passage from the prosecutor's rebuttal in closing argument, quoted, ante. A reasonable inference from the evidence was that Alatorre found an easy way to make money and would have continued robbing banks if he were not caught. The fact that he twice robbed the same credit union and the same teller working there, and said "I'll be back" during the second robbery, revealed an arrogance in committing the robberies. The prosecutor properly commented upon Alatorre's lack of consideration for the victims and his own selfishness.
Further, the quoted passage was in rebuttal to defense counsel's closing argument. In that argument, defense counsel stated that Alatorre committed the robberies because he was desperate. She further argued that he used a fake gun and was not a violent person. She argued he admitted he made a terrible mistake, but was scared and desperate and did not know what to do. Thus, the prosecutor's rebuttal argument was an appropriate response to defense counsel's sympathetic portrayal of Alatorre by arguing he committed the robberies for selfish reasons.
Further, to the extent the prosecutor's statements could be considered misconduct, Alatorre was not prejudiced by the prosecutor's error. The court instructed the jury that they must follow the law given them by the court, and if it conflicted with the attorney's comment during closing argument, the jury must follow the court's instructions. (CALCRIM No. 200.) The court instructed the jury that nothing the attorneys said during closing argument was evidence. (CALCRIM No. 222.) As a jury is presumed to have followed the court's instructions, any error was cured. (People v. Wash (1993) 6 Cal.4th 215, 263.)
Additionally, " ' "when the claim focuses upon comments made by the prosecutor to the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion." ' " (People v. Ayala (2000) 23 Cal.4th 225, 284.) Given the substantial evidence supporting the firearm allegations, it is not reasonably likely that Alatorre would have received a more favorable result had the prosecutor made the remarks at issue.
As Alatorre acknowledges, the only disputed issue at trial was whether he displayed a real gun during two of the robberies. However, substantial evidence supports the findings that he displayed an actual firearm during the robberies. The tellers to whom Alatorre displayed the gun testified that it looked like a black, semi-automatic pistol and that it looked real. Detective Nuemann watched the surveillance videos and said the gun was a black semi-automatic handgun, which, based upon his experience in law enforcement for over 14 years, he believed to be real. Thus, in view of the court's instructions, and the strength of the evidence, any prosecutorial misconduct was harmless.
II. INSTRUCTION ON GUN ENHANCEMENT ALLEGATION
Alatorre asserts that the court erred when, at the request of the prosecutor, it modified CALCRIM No. 3146 regarding personal use of a firearm. He also asserts that this modification violated his due process rights by lessening the prosecutor's burden of proof. We reject these contentions.
A. Background
When discussing jury instructions, the prosecutor requested a modification of CALCRIM No. 3146 to add the following language:
"In determining whether or not the defendant personally used a firearm during the commission of a robbery as alleged in counts 1, 4 and 5, you may consider the following as circumstantial evidence as to personal use of a firearm: And the element[s] are: [¶] 1, Whether the victim believed it looked like a firearm. [¶] 2, The defendant's
conduct and words in using the object, whatever it was. [¶] . . . [Y]ou need not find conclusively that the gun is a real firearm, rather than a toy, for purposes of finding this allegation true."
The prosecutor based this modification on language from the opinion People v. Monjaras (2008) 164 Cal.App.4th 1432 (Monjaras), which held that such circumstantial evidence was sufficient to support a personal use of a firearm allegation. Defense counsel objected to the instruction and argued the last sentence would allow the jury to find Alatorre personally used a firearm even if they thought the gun was a toy.
The court agreed with defense counsel as to the last sentence. However, after deleting the last sentence the court agreed to the remainder of the modification, finding it was a correct statement of the law.
B. Analysis
A firearm is defined as "any device, designed to be used as a weapon, from which is expelled through a barrel, a projectile by the force of any explosion or other form of combustion." (§ 12001, subd. (b).) Thus, though a firearm need not be loaded or operable for the crime or enhancement to apply (§ 12022.53, subdivision (b)), use of a replica or toy gun does not support the crime or enhancement. (Monjaras, supra, 164 Cal.App.4th at p. 1435; People v. Jackson (1979) 92 Cal.App.3d 899, 903, fn. 7.)
" 'Whether the defendant . . . personally used a firearm [is a] factual question[] for the jury's determination.' " (People v. Dominguez (1995) 38 Cal.App.4th 410, 421.) Moreover, "the victim's inability to say conclusively that the gun was real and not a toy does not create a reasonable doubt, as a matter of law, that the gun was a firearm." (Monjaras, supra, 164 Cal.App.4th at p. 1437.) When no gun is recovered, "[t]he character of the weapon may be shown by circumstantial evidence[, such as] testimonial descriptions of the weapon and its role in the commission of the crime." (People v. Hayden (1973) 30 Cal.App.3d 446, 451-452, overruled on other grounds in People v. Rist (1976) 16 Cal.3d 211, 223, fn. 10.)
Monjaras, supra, 164 Cal.App.4th 1432, is instructive. In that case, the defendant confronted a woman "late at night in the lighted parking lot of an apartment complex," said, "Bitch, give me your purse," and "pulled up his shirt and displayed the handle of a black pistol tucked in his waistband." (Id. at p. 1434.) On appeal, the defendant in Monjaras claimed there was insufficient evidence to support his firearm enhancement because there was no proof the firearm was real. (Id. at p. 1435.)
The Court of Appeal rejected this argument, finding the circumstantial evidence of the defendant's own words and conduct provided substantial evidence from which the jury could find the gun was real: "The pistol tucked into defendant's waistband looked like a firearm, and it in effect communicated that it was a firearm when defendant menacingly displayed it and ordered the victim to give him her purse. While it is conceivable that the pistol was a toy, the jury was entitled to take defendant at his word, so to speak, and infer from his conduct that the pistol was a real, loaded firearm and that he was prepared to shoot the victim with it if she did not comply with his demand. [Citation.] [¶] Simply stated, when as here a defendant commits a robbery by displaying an object that looks like a gun, the object's appearance and the defendant's conduct and words in using it may constitute sufficient circumstantial evidence to support a finding that it was a firearm . . . . In other words, the victim's inability to say conclusively that the gun was real and not a toy does not create reasonable doubt, as a matter of law, that the gun was a firearm." (Monjaras, supra, 164 Cal.App.4th at p. 1437.)
Thus, the court properly instructed the jury, based upon the Monjaras case, regarding the types of circumstantial evidence that could be considered in deciding the firearm use allegation. It simply told them they could consider whether the victims believed the object displayed was a real firearm, and Alatorre's conduct and words in using the object. Moreover, contrary to Alatorre's argument, it did not presume that he had "used" the object, thereby undermining the presumption of innocence. Rather, it directed the jury as to circumstantial evidence they could consider "[i]n determining whether or not the defendant personally used a firearm during the commission of a robbery . . . ."
Relying on People v. Wright (1988) 45 Cal.3d 1126, Alatorre asserts the instruction was improper pinpoint instruction because it shifted the burden of proof by highlighting certain evidence. This contention is unavailing.
The Wright decision held that the trial court properly refused an instruction which directed the jury's attention to specific evidence relating to the accuracy of eyewitness identification. (People v. Wright, supra, 45 Cal.3d at pp. 1152-1153.) The Supreme Court held the instruction requested, that eyewitness identification should be viewed with caution, was redundant of other standard instructions on eyewitness identification: "We hold this instruction was properly refused. [¶] No California case has held that such a cautionary instruction is required in addition to the eyewitness 'factors' instruction. . . . [¶] . . . [¶] . . . A special cautionary instruction is unnecessary because the 'factors' instruction already required properly highlights the factors relevant to defendant's concerns about the reliability of eyewitness identification testimony in a particular set of circumstances." (Ibid.) The Supreme Court further held that the part of the instruction that admonished the jury that mistaken identification was "not uncommon" was "objectionable and may be properly rejected because it 'does not state a principle of law or establish a basis for instructing a jury.' " (Id. at p. 1152.)
Here, there was no redundancy with other instructions, and the instruction was an accurate statement of the law. Thus, the court did not err in modifying CALCRIM No. 3146.
III. FAILURE TO INSTRUCT ON LESSER INCLUDED ENHANCEMENT Alatorre asserts the trial court had a sua sponte duty to instruct on the lesser included enhancement of being armed with a firearm within the meaning of section 12022, subdivision (a). This contention is unavailing.
In People v. Majors (1998) 18 Cal.4th 385, 410 (Majors) the Court Supreme Court rejected this exact contention, explaining: "One of the primary reasons for requiring instructions on lesser included offenses is ' "to eliminate the distortion of the factfinding process that is created when the jury is forced into an all-or-nothing choice between [guilt] and innocence" '—that is, to eliminate ' "the risk that the jury will convict . . . simply to avoid setting the defendant free." ' [Citation.] This risk is wholly absent with respect to enhancements, which a jury does not even consider unless it has already convicted defendant of the underlying substantive offenses."
Alatorre asserts Majors is no longer controlling in light of Apprendi v. New Jersey (2000) 530 U.S. 466 and People v. Seel (2004) 34 Cal.4th 535. He contends the failure to instruct on the lesser included enhancement presented the jury with an inappropriate all or nothing choice which resulted in a substantial increase in his prison term without a proper fact-finding procedure.
Apprendi held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." (Apprendi v. New Jersey, supra, 530 U.S. at p. 490.) Seel held double jeopardy protections preclude retrial of premeditation allegations after a finding of evidentiary insufficiency. (People v. Seel, supra, 34 Cal.4th at p. 539.) Neither Apprendi nor Seel impacts the holding in Majors regarding the sua sponte duty of the trial court to instruct on lesser included enhancements. Majors does not remove from the jury the ability to act as the factfinder to increase the penalty for a crime beyond the prescribed statutory maximum or deprive the defendant of a legal right to a lesser sentence. Therefore, Majors does not run afoul of Apprendi or Seel.
IV. UPPER TERM ON COUNT 1
Alatorre asserts that the court abused its discretion in selecting the upper term on count 1, and that by selecting the upper term, the court contravened the sentencing rules promulgated by the Judicial Council. We reject this contention.
A. Background
At sentencing the court indicated it had read the probation report and the sentencing briefs filed by the parties. The court also indicated its understanding that Alatorre did not have a lengthy criminal record, only one felony conviction that occurred "some time ago."
The court then heard from the tellers Alatorre robbed. Lamountain stated that the robberies completely altered her life. She stated she had never felt so terrified and violated. She had trouble returning to work and was so scared she could no longer work in the merchant booth. She had been back at work less than two weeks when Alatorre robbed her again. After the second robbery, she was an "emotional mess" and had to take an extended leave of absence. She was constantly afraid of this happening again and was always feeling scared and uneasy. She could not believe how Alatorre came into the bank with a smirk on his face, as if he were justified in his actions. Lamountain asked the court to sentence Alatorre to the maximum amount of time.
Rico stated that when Alatorre came into the credit union a second time, he was "very calm and very cocky" and showed no remorse or sympathy for what he was putting them through. As he was leaving the bank, he said, "I'll be back." Alatorre robbed them of more than money—he robbed them of their sense of security and peace. She asked the court to give him the "stiffest" punishment because he did not consider the victims or their feelings.
Acosta told the court she was pregnant when Alatorre robbed her, and she lost the baby because of the stress of the robbery. Additionally, because of the stress, she had to cut her hours, which meant a reduction in her pay. She asked the court to sentence Alatorre to the maximum term because her life would never be the same.
The court then heard from Alatorre. He told the court that he knew what he did was wrong but he was "blinded by [his] necessity." The court responded that a lot of people had financial problems and, based upon his reasoning, everyone who needed money should commit a bank robbery. The court also pointed out there were victims who were traumatized by his actions.
The probation report listed two aggravating circumstances: (1) the manner in which the crime was carried out showed planning and sophistication, and (2) he engaged in violent conduct that indicates a serious danger to society.
The prosecution's sentencing brief set forth eight aggravating factors. In addition to the two factors identified in the probation report, the prosecution identified the following aggravating factors: (1) he denied responsibility for his actions by trying to rationalize his criminality and, even though the jury found the gun allegations true, he still denied it was a real gun; (2) he threatened the victims by suggesting they would be harmed if they did not comply with their demands; (3) the victims were particularly vulnerable because they were performing their jobs at the banks; (4) the crimes involved the taking of great monetary value—over $15,000; (5) he repeatedly terrorized his victims who were trying to make an honest living; and (6) his prior conviction showed his crimes were of increasing seriousness, i.e., he was convicted of felony drug smuggling in 1996.
The court rejected the prosecutor's request for 25 years and the defense's request for 13 years. The court concluded 20 years was appropriate.
B. Analysis
Section 1170, subdivision (b), provides in part: "When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court. . . . The court shall select the term which, in the court's discretion, best serves the interests of justice." We review the trial court's sentencing choice for abuse of discretion. (People v. Sandoval (2007) 41 Cal.4th 825, 847.) " 'The burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.' " (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978.)
The court's sentencing discretion is informed by its evaluation of factors in mitigation and aggravation. (§ 1170, subd. (b).) These sentencing factors are weighed by the sentencing judge to determine the prison term within the offense's sentencing range. (People v. Scott (1994) 9 Cal.4th 331, 349; Cal. Rules of Court, rule 4.420(b).) This wide discretion allows the sentencing court to balance the factors against each other in both qualitative and quantitative terms. (People v. Avalos (1996) 47 Cal.App.4th 1569, 1582.)
A sentencing court's discretion to impose an upper term "must be exercised in a manner that is not arbitrary and capricious, that is consistent with the letter and spirit of the law, and that is based upon an 'individualized consideration of the offense, the offender, and the public interest.' " (Sandoval, supra, 41 Cal.4th at p. 847.) The federal Constitution allows the sentencing court to rely on any number of circumstances in exercising its discretion to select the appropriate term. (People v. Black (2007) 41 Cal.4th 799, 812.)
A single aggravating factor supported by substantial evidence suffices to impose the upper term. (People v. Osband (1996) 13 Cal.4th 622, 732; People v. Jones (2009) 178 Cal.App.4th 853, 863, fn. 7; People v. Lamb (1988) 206 Cal.App.3d 397, 401 ["One factor alone may warrant imposition of the upper term [citation] and the trial court need not state reasons for minimizing or disregarding circumstances in mitigation."].)
Here, the court did not abuse its discretion in imposing the upper term on count 1. The sentencing court engaged in an " 'individualized consideration of the offense, the offender, and the public interest.' " (Sandoval, supra, 41 Cal.4th at p. 847.) The court indicated it considered the probation report and the prosecution's sentencing brief, which properly set forth a total of eight aggravating factors. The statements given by three of the victims supported several of those factors. Any one of those aggravating factors could have supported the upper term. (Sandoval, supra, 41 Cal.4th at p. 848.) The court correctly rejected Alatorre's excuse of having financial problems as mitigating his actions. The court also noted the impact on the victims. Against this, the court weighed the lack of a substantial criminal record. Based upon these facts, the court acted within its discretion in imposing the upper term.
DISPOSITION
The judgment is affirmed.
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NARES, J.
WE CONCUR:
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McCONNELL, P. J.
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AARON, J.