Opinion
G048664
10-23-2014
THE PEOPLE, Plaintiff and Respondent, v. SILVANO ANALCO ALVAREZ, Defendant and Appellant.
Tonja R. Torres, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Amanda E. Casillas, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 11CF2769) OPINION Appeal from a judgment of the Superior Court of Orange County, W. Michael Hayes, Judge. Affirmed. Tonja R. Torres, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Amanda E. Casillas, Deputy Attorneys General, for Plaintiff and Respondent.
Silvano Analco Alvarez appeals from a judgment after a jury convicted him of assault with intent to commit rape during the commission of first degree burglary (Pen. Code, § 220, subd. (b)) (count 1), and found true he used a deadly weapon during a sex offense (Pen. Code, § 12022.3, subd. (a)). Alvarez argues the trial court erred in imposing the upper term of 10 years on the deadly weapon use enhancement. We disagree and affirm the judgment.
FACTS
One night in 2007, Erica R. was alone in her apartment and went to sleep. She was later woken up by a hand touching her shoulder. She looked at the man, later identified as Alvarez, touching her shoulder and did not recognize him. Twenty-six-year-old Alvarez told Erica that he was her boyfriend and to remove her clothes, but she told him to leave. Alvarez got on top of Erica and put a knife to her neck while he kissed and bit her neck. Erica could feel the knife pressed against her neck. Alvarez put the knife on the pillow while he continued to kiss her and ask her to take off her clothes. Erica told Alvarez that her sister would be home shortly. Alvarez immediately left the apartment. A forensic specialist took DNA samples from Erica's neck and a DNA profile was obtained, but no arrests were made.
Four years later, a detective received notice of a match. Detectives located Alvarez and asked him to go to the police station to speak about the incident with Erica. After detectives advised Alvarez he was not under arrest, he was free to leave, and he did not have to answer their questions, they questioned him about the incident. Alvarez told detectives he had seen Erica in the neighborhood and liked her. He watched Erica leave her apartment so he knew where she lived. The night of the incident, Alvarez watched Erica and knew she was home alone. Alvarez stated he entered the apartment that night armed with a knife with the intent to have sexual relations with Erica by force if necessary. He admitted he got on top of her, put the knife to her neck and wanted to have sexual intercourse with her.
After the jury's verdicts, the probation department prepared a probation report (the Report). The Report listed the aggravating circumstances as follows: Alvarez was armed with a knife during the commission of the crime; Erica was particularly vulnerable because she was asleep and alone when attacked; Alvarez had time to plan his crime because he had been watching Erica and knew she was home alone; and Alvarez engaged in conduct that indicated a serious danger to society because he entered her home armed with a knife, claimed to be her boyfriend, and told her to remove her clothes. The Report listed one mitigating circumstance—Alvarez had a minimal prior record of criminal conduct. The Report also included Erica's statement. Erica stated she continues to suffer from debilitating anxiety and she moved to Northern California to be near her mother. Erica stated that she did not believe Alvarez should spend the rest of his life in jail but "'the sentencing should fit the crime.'"
The parties also submitted sentencing briefs. The prosecutor argued for 17 years to life in prison. Alvarez requested a sentence of seven years to life based on a number of mitigating circumstances, including he was in the bottom five percent of intelligence and he had a low to moderate level of committing another sexual offense.
During the sentencing hearing, the court stated it has read and considered the Report and sentencing briefs. After stating its tentative sentence on count 1 was life with possibility of parole, the court turned to the deadly weapon use enhancement, which provided for 3, 4, or 10 years. The prosecutor requested the aggravated term. The court asked defense counsel why it should be anything less than 10 years because Alvarez broke into the apartment, put a knife to Erica's neck, and fondled her. Defense counsel argued Alvarez did not rape or injure Erica and he left voluntarily. The prosecutor responded Alvarez left because he feared getting caught.
The trial court selected the upper term of 10 years on the deadly weapon use enhancement because of "the way he went about committing the crime." The court reasoned Alvarez held the knife to Erica's neck as he fondled her and did everything he could have done short of committing another crime. The court opined Alvarez left because he thought he was going to be caught. The court stated the crime was "about as aggravate[ed] as you can get." The trial court sentenced Alvarez to a total term of life with the possibility of parole on count 1 plus a consecutive term of 10 years for the deadly weapon use enhancement.
DISCUSSION
While exercising its discretion in selecting one of the three authorized prison terms, the trial court may consider circumstances in aggravation or mitigation, and any other factor reasonably related to the sentencing decision. (People v. Black (2007) 41 Cal.4th 799, 811; Cal. Rules of Court, rule 4.420(b).) Circumstances in aggravation include the following: "[t]he defendant was armed with or used a weapon at the time of the commission of the crime" (Cal. Rules of Court, rule 4.421(a)(2)); "[t]he victim was particularly vulnerable" (Cal. Rules of Court, rule 4.421(a)(3)); "[t]he manner in which the crime was carried out indicates planning, sophistication, or professionalism" (Cal. Rules of Court, rule 4.421(a)(8)); and "[t]he defendant has engaged in violent conduct that indicates a serious danger to society" (Cal. Rules of Court, rule 4.421(b)(1)). A single factor in aggravation is sufficient to justify the upper term. (People v. Osband (1996) 13 Cal.4th 622, 730).
On appeal, the court will consider whether the trial court exercised its discretion in a way "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.'" (People v. Sandoval (2007) 41 Cal.4th 825, 847). "The burden is on the party attacking the sentence to clearly show the sentencing decision was irrational or arbitrary." (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977.) "'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.' [Citation.]" (Id. at pp. 977-978.)
The sole issue here is whether the trial court abused its discretion in imposing the aggravated term of 10 years for the deadly weapon use enhancement. Alvarez argues the court erred because he did not rape or injure Erica and he voluntarily left. Not so.
The trial court did not abuse its discretion in imposing the aggravated term of 10 years on the deadly weapon use enhancement. The evidence at trial establishes Alvarez stalked Erica. He watched her, knew where she lived, waited until she was home alone, and entered her home under the dark of night. Alvarez attacked Erica when she was at her most vulnerable—she was alone and asleep. Alvarez got on top of Erica and pressed his knife against her neck, one of the most vulnerable parts of the body. Placing the knife against her neck is more egregious than another part of the body because the neck is extremely susceptible to serious injury. (See People v. Moore (2002) 96 Cal.App.4th 1105, 1114 [intent may be inferred from place of injury].) One small movement and Erica could have been severely injured.
The evidence also supports the trial court's conclusion that although Alvarez left on his own volition, he did so out of fear of getting caught. Alvarez did not have a change of heart and realize he was making a mistake. Instead, he was afraid of the consequences of getting caught and left immediately after Erica told him that her sister would be home shortly.
Alvarez relies on People v. Price (1984) 151 Cal.App.3d 803 (Price) to contend his use of the knife was an ordinary element of the crime and not an aggravated one. In Price, defendant threatened a woman with a knife at a liquor store while the clerk handed defendant money from the register. Defendant used the knife to cut off the woman's bra and forced her to orally copulate him in front of the clerk. Defendant also cut off portions of the woman's pubic hair before he raped her. (Price, supra, 151 Cal.App.3d at p. 810.) The Price court remanded the matter for two reasons: it was improper for the trial court to rely on the same facts to both supply an aggravating factor on a substantive offense and support a true finding on an enhancement allegation, and the trial court did not state reasons for its decision to impose the upper term for the use of the knife. (Id. at pp. 814-815.) Price is inapposite.
Here, the trial court did not rely on the same fact for the aggravating factor on the substantive offense and to support the enhancement allegation. The trial court here did give specific reasons for its decision to impose the aggravated term. The court imposed the aggravated term because of the manner in which Alvarez committed the offense—he waited until nighttime when Erica was alone and asleep before he tried to have sexual intercourse with her at knifepoint. Alvarez has not demonstrated the trial court abused its discretion in imposing the upper term of 10 years on the deadly weapon use enhancement. We affirm the judgment.
DISPOSITION
The judgment is affirmed.
O'LEARY, P. J. WE CONCUR: RYLAARSDAM, J. FYBEL, J.