People v. Alatorre CA4/3

Filed 4/18/23 P. v. Alatorre CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G061507

v. (Super. Ct. No. 20NF0719)

EDGAR FERNANDO ALATORRE, OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, Gregg L. Prickett, Judge. Affirmed. Joanna McKim, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Christopher P. Beesley and Kristen Kinnaird Chenelia, Deputy Attorneys General, for Plaintiff and Respondent.

This is the second opinion we have issued in this case. In the first, we affirmed appellant’s convictions for aggravated assault and other crimes but reversed his sentence and remanded for resentencing pursuant to newly-amended Penal Code section 1 1170. That section makes the middle term the presumptive sentence for a term of imprisonment and generally requires any aggravating factors used to support imposition of an upper term to be stipulated to by the defendant or found true beyond a reasonable doubt by the judge or jury. However, when the trial court resentenced appellant in this case, it imposed the upper term on a firearm enhancement based on an aggravating factor – injury to the victim – that was neither stipulated to nor found true beyond a reasonable doubt. Appellant contends this constitutes reversal error, but we cannot agree. Although the misstep violated the tenets of section 1170, the error was harmless because the record overwhelmingly and undisputedly shows appellant’s firearm use caused injury to the victim, which is a legitimate aggravating factor for purposes of the firearm enhancement. We therefore affirm the judgment. FACTS A complete recitation of the facts is set forth in our prior opinion. (See 2 People v. Alatorre (Jan. 11, 2022, G059547) [nonpub. opn.] (Alatorre I).) To summarize, appellant got into a heated argument with his former girlfriend Mia R. and her friend Kelsey S. when they went to appellant’s residence to retrieve a television Mia had lent him. During the row, appellant struck Kelsey on her head with a handgun. On impact, the gun discharged a single bullet that grazed Kelsey just above the ear, leaving a two-inch gash. The wound was not life threatening but it did require stitches.