People v. Alvarado

THE PEOPLE, Plaintiff and Respondent, v. MIGUEL JOSE ALVARADO, Defendant and Appellant.

G048073

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE

Filed: April 10, 2014

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 09NF0915)

OPINION

Appeal from a judgment of the Superior Court of Orange County, William R. Froeberg, Judge. Affirmed as modified and remanded for resentencing.

Kevin D. Sheehy, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Paige B. Hazard, Deputy Attorneys General, for Plaintiff and Respondent.

Miguel Jose Alvarado appeals from a judgment after the jury convicted him of attempted voluntary manslaughter, shooting at an occupied motor vehicle, and street terrorism, and found true street terrorism and firearm enhancement allegations. Alvarado argues there were four sentencing errors. The Attorney General agrees with three of Alvarado's claims but with respect to one of Alvarado's claims, it invites this court to impose a sentence on the street terrorism enhancement. We affirm the judgment as modified and remand for resentencing.

FACTS

On the afternoon of March 24, 2009, almost 18-year-old Alvarado, his twin brother Miguel Antonio Alvarado (Miguel), and Luis Hernandez, all known members of the "Monos" criminal street gang, drove a green Nissan Altima into rival gang territory. A red Mitsubishi Eclipse, occupied by "All West Coast" (AWC) criminal street gang members, arrived in the area. Alvarado, who was in the front passenger seat, directed Miguel, who was driving, to follow the Eclipse.

Off-duty police officer Robert Jaramillo and his cousin Anthony Hernandez saw the cars as they drove through a stop sign without stopping. Jaramillo parked his car behind a school where they could watch the scene unfold. Alvarado got out of the car, ran towards the Eclipse, and yelled, "'Hey, motherfucker.'" Alvarado fired two or three gun shots at the Eclipse as the driver drove the car in reverse.

Within minutes, officers arrested Alvarado, Miguel, and Hernandez. A detective later interviewed Alvarado after advising him of his rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436. When the detective asked Alvarado why he shot at the Eclipse, Alvarado responded, "Fuck those fools." Alvarado stated the AWC gang members threw bottles at them. He fired at the car three times because he had only three bullets.

Officers later searched Alvarado's house and found a loaded .357 handgun and numerous .22 caliber hollow point bullets. Alvarado claimed he was holding the gun for someone.

An amended information charged Alvarado¹ with willful, deliberate, and premeditated attempted murder (Pen. Code, §§ 664, subd. (a), 187, subd. (a))² (count 1), shooting at an occupied motor vehicle (§ 246) (count 2), and street terrorism (§ 186.22, subd. (a)) (count 3). The information alleged Alvarado did the following: committed counts 1 and 2 for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)); personally discharged a firearm during the commission of count 1 (§ 12022.53, subd. (c)); and personally used a firearm during the commission of count 1 (§ 12022.5, subd. (a)).

At trial, the prosecutor offered the testimony of gang expert Michael Costanzo. After detailing his background, training, and experience, Costanzo testified concerning the culture and habits of traditional, turf-oriented criminal street gangs, and specifically Monos. He provided testimony that established Monos was a criminal street gang as statutorily defined. Based on his review of the case and investigation, he opined Alvarado, Miguel, and Hernandez were active participants in Monos at the time of the offenses.

The jury acquitted Alvarado of attempted murder but convicted him of the lesser included offense of attempted voluntary manslaughter (§§ 664, subd. (a), 192, subd. (a)). The jury also convicted him of the other counts and found true all the allegations.

The trial court denied Alvarado probation, explaining the case was not unusual (Cal. Rules of Court, rule 4.413) because Alvarado, who had a significant record of criminal violence, including five juvenile convictions, engaged in gang warfare in the middle of the afternoon on city streets. After weighing the five aggravating circumstances against the one mitigating circumstance, the court selected count 2 as the principal count and sentenced Alvarado to 22 years to life in prison as follows: count 2-the upper term of seven years and an indeterminate term of 15 years to life on the street terrorism enhancement; count 1-five years and six months, a consecutive 10-year term for the street terrorism enhancement (§ 186.22, subd. (b)(1)(C)), and a consecutive 10-year term for the firearm use enhancement (§ 12022.5, subd. (a)); and count 3-three years. Pursuant to section 654, the court stayed the sentences on count 1 and its related enhancements, and count 3. The court awarded Alvarado 1,423 days of actual credit and 213 days of conduct credit for a total of 1,636 days.

DISCUSSION

I. Count 2

A. Alternate Penalty Provision

Alvarado argues the trial court erred when it imposed both determinate and indeterminate sentences for count 2. The Attorney General agrees. We agree too.

Shooting at an occupied motor vehicle (§ 246) is by itself punishable by a term of three, five, or seven years in prison. Generally, when a defendant commits a felony for the benefit of and with the specific intent to promote a criminal street gang, a trial court may impose a prison term for the felony and enhance the sentence with a prescribed term of years. (§ 186.22, subd. (b).) But when a defendant shoots at an occupied motor vehicle for the benefit of and with the specific intent to promote a criminal street gang, the penalty is life imprisonment with a minimum term of no less than 15 years. (§ 186.22, subd. (b)(4)(B).) As the California Supreme Court stated in People v. Brookfield (2009) 47 Cal.4th 583, 591 (Brookfield), the "life term does not . . .constitute a sentence enhancement, because it is not imposed in addition to the sentence for the underlying crime . . . ; rather, it is an alternate penalty for that offense." (People v. Jones (2009) 47 Cal.4th 566, 572 (Jones) [violation of § 246 for benefit of and with specific intent to promote criminal street gang punishment 15 years to life].)

Based on section 186.22, subdivision (b)(4), and Brookfield and Jones, the trial court erred in sentencing Alvarado to a determinate term of seven years in addition to the indeterminate term of 15 years to life on count 2. Thus, we strike the seven-year term on count 2. Alvarado's sentence on count 2 is 15 years to life.

B. Cruel and Unusual Punishment

Alvarado contends his indeterminate term of 15 years to life on count 2 is cruel and unusual punishment on its face and as applied in violation of the federal and state constitutions. The Attorney General replies Alvarado forfeited appellate review of this issue because Alvarado did not object on this ground at the sentencing hearing. Alvarado does not claim he raised this issue below. Instead, Alvarado responds he did not forfeit appellate review of the issue because it would have been futile to raise the issue based on the then state of the law, and it is an important issue of first impression on fundamental constitutional rights that may be raised for the first time on appeal. We agree with the Attorney General.

Alvarado cites to Miller v. Alabama (2012) 567 U.S. _, 132 S.Ct. 2455 [mandatory life imprisonment without parole for juveniles violates Eighth Amendment], Graham v. Florida (2010) 560 U.S. 48 [life without parole for juvenile who did not commit homicide violates Eighth Amendment], and Roper v. Simmons (2005) 543 U.S. 551 [Eighth Amendment prohibits capital punishment for juvenile offenders], to argue the law at the time of the sentencing hearing did not support the argument he advances now. As support for his claim he cites to People v. Sandoval (2007) 41 Cal.4th 825, 837, footnote 4. It is true, as Sandoval states, that a claim is not forfeited if there is an unforeseeable change in the law that trial counsel could not have anticipated, but thecases Alvarado relies on were decided before his sentencing hearing. And he cites to no case that supports his contention his claim would have been futile as a matter of law. He could have certainly argued the rationale of those cases should be extended to prohibit a sentence of 15 years to life with the possibility of parole.

As to his second claim, a defendant's failure to contemporaneously object that his sentence constitutes cruel and unusual punishment forfeits that claim on appellate review. (People v. Gamache (2010) 48 Cal.4th 347, 403; People v. Mungia (2008) 44 Cal.4th 1101, 1140-1141; People v. Wallace (2008) 44 Cal.4th 1032, 1096; People v. Lewis and Oliver (2006) 39 Cal.4th 970, 997; People v. Burgener (2003) 29 Cal.4th 833, 886-887; People v. Vallejo (2013) 214 Cal.App.4th 1033, 1045; People v. Norman (2003) 109 Cal.App.4th 221, 229-230.) A claim a sentence is cruel and unusual is forfeited on appeal if it is not raised in the trial court because the issue often requires a fact-bound inquiry. (People v. Russell (2010) 187 Cal.App.4th 981, 993 [type of issue that should be raised in trial court because trial judge after hearing evidence in better position to evaluate mitigating circumstances and determine their impact on constitutionality of sentence]; People v. DeJesus (1995) 38 Cal.App.4th 1, 27; People v. Ross (1994) ...