People v. Alarconnunez CA2/6 ( 2022 )

Filed 8/15/22 P. v. Alarconnunez CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B311953
(Super. Ct. No. 18F-00491)
Plaintiff and Respondent, (San Luis Obispo County)
v.
ALFONSO
ALARCONNUNEZ,
Defendant and Appellant.
Alfonso Alarconnunez appeals from the judgment after a
jury convicted him of multiple counts of sexual assault, forcible
rape, burglary, and other theft crimes. (Pen. Code, §§ 261, subd.
(a)(2), (3), 667.61, 220, subds. (a), (b), 288A, subd. (i), 459, 487,
subd. (a).)1 Appellant contends recent legislative changes require
reversal and remand for resentencing. The Attorney General
agrees. We remand for resentencing consistent with Senate Bill
1 All further statutory references are to the Penal Code.
No. 567 and Assembly Bill No. 518. In all other respects, we
affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
Because the parties correctly concede this matter must be
remanded for resentencing, we provide only an abbreviated
summary of the factual basis for appellant’s convictions. The
evidence at trial established that appellant, posing as an Uber
driver gave rides to intoxicated young women. Upon entry into
their apartments, he sexually assaulted each victim, took
photographs and videos of them, stole valuable items from them
and then sent himself large sums of money through their Venmo
accounts.
Each victim became heavily intoxicated at a party or bar.
Some victims believed they had been drugged. Because they
were intoxicated, the victims or their friends arranged for them
to return home using an Uber. In nearly all of the cases,
appellant acted as their driver, took them to their apartments,
escorted them inside and then sexually assaulted them.
Appellant took photos and videos of the victims during and after
the assaults. While the victims were unconscious, appellant stole
their belongings and sent himself money through their Venmo
accounts. Afterward, he sent the victims Facebook messages
insinuating that they had consented to both the sexual assaults
and the Venmo transfers.
Appellant’s DNA matched samples obtained from the
victims. He was confirmed to be the owner of the Facebook
messenger and Venmo accounts associated with the crimes.
Police executed a search warrant at appellant’s house and
recovered the victims’ stolen property as well as photographs and
videos of them.
2
Jury Trial and Sentencing
Following a jury trial, appellant was convicted of 13 counts
that included forcible rape (§ 261, subd. (a)(2); count 6), three
counts of assault with intent to commit rape (§ 220, subd. (b);
counts 1, 4, 11), two counts of rape by use of drugs (§ 261, subd.
(a)(3); counts 2, 7), oral copulation by anesthesia or controlled
substance (§ 288A, subd. (i); count 5), assault with intent to
commit a felony (§ 220, subd. (a)(1); count 12), four counts of first
degree residential burglary (§ 459; counts 13, 3, 8, 10), and grand
theft of personal property (§ 487, subd. (a); count 9). The jury
also found true the special allegation of residential burglary with
intent to commit rape (§ 667.61, subds. (a) & (d)).
The trial court sentenced appellant to 46 years to life plus 8
years, 8 months in state prison, consisting of the full, consecutive
upper term of six years (count 12), two years (count 13), eight
months (count 9), 25 years to life (count 6), seven years to life
(count 1), seven years to life (count 4), and seven years to life
(count 11). The trial court imposed, but stayed, the upper term
for counts 2, 3, 5, 7, 8, and 10, pursuant to section 654.
In selecting the upper term sentences, the trial court
invoked all of the aggravating factors set forth in the probation
report. The trial court explained that the victims in this case
were “particularly vulnerable” in their intoxicated state, and
appellant “took advantage” of his “position of trust” as an Uber
driver. He “target[ed] young women who could not take care of
themselves.” The trial court declined to add a mitigating factor
that appellant took responsibility at an early stage because he
continued to minimize his conduct and discredit the victims.
3
DISCUSSION
Senate Bill No. 567
Appellant contends his upper term sentences should be
vacated and remanded for resentencing in light of the recent
amendments to section 1170, pursuant to Senate Bill No. 567.
Effective January 1, 2022, Senate Bill No. 567 (2021-2022
Reg. Sess.) (S.B. 567) amended section 1170 such that the middle
term is now the presumptive term of imprisonment. (Stats. 2021,
ch. 731, § 1.3.) Under the newly amended law, the trial court
must “order imposition of a sentence not to exceed the middle
term” unless there are “circumstances in aggravation of the crime
that justify the imposition of a term of imprisonment exceeding
the middle term, and the facts underlying those circumstances
have been stipulated to by the defendant, or have been found true
beyond a reasonable doubt at trial by the jury or by the judge in a
court trial.” (§ 1170, subds. (b)(1), (2).)
Here, appellant did not stipulate to the aggravated factors,
nor did the jury find those factors true beyond a reasonable
doubt. As the Attorney General correctly concedes, amended
section 1170, subdivision (b) applies retroactively to appellant
because his case is not final on appeal. (See People v. Flores
(2022) 73 Cal.App.5th 1032, 1039; In re Estrada (1965) 63 Cal.2d
740, 745 (Estrada).) Accordingly, remand for resentencing is
required in this case.
Assembly Bill No. 518
Appellant next contends the recent amendment to section
654 also requires reversal for resentencing. Assembly Bill No.
518 (2021-2022 Reg. Sess.) (A.B. 518) amended section 654,
effective January 1, 2022, to provide that “[a]n act or omission
that is punishable in different ways by different provisions of law
4
may be punished under either of such provisions, but in no case
shall the act or omission be punished under more than one
provision.” (Stats. 2021, ch. 441, § 1.) Prior to the amendment,
the sentencing court was required to impose the sentence that
“provide[d] for the longest potential term of imprisonment . . . .”
(§ 654, former subd. (a).) The parties agree that under the
principles of Estrada, A.B. 518 applies retroactively to appellant’s
nonfinal conviction. (People v. Sek (2022) 74 Cal.App.5th 657,
673-674; Estrada, supra, 63 Cal.2d 740, 745.)
Although we agree remand is required, we take no position
on how the trial court should exercise its discretion when it
resentences appellant.
DISPOSITION
The sentence is vacated, and the matter is remanded to the
trial court for a full resentencing pursuant to section 1170,
subdivision (b) and section 654, consistent with S.B. 567 and A.B.
518. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED.
YEGAN, J.
We concur:
GILBERT, P. J.
PERREN, J.*
*Retired Associate Justice of the Court of Appeal, Second Appellate District,
assigned by the Chief Justice pursuant to article VI, section 6 of the California
Constitution.
5
Craig B. van Rooyen, Judge
Superior Court County of San Luis Obispo
______________________________
Mark D. Lenenberg, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Noah P. Hill, Supervising Deputy
Attorney General, Stephanie C. Santoro, Deputy Attorney
General, for Plaintiff and Respondent.