Order                                                                       Michigan Supreme Court
                                                                                  Lansing, Michigan

  September 16, 2011                                                                Robert P. Young, Jr.,
                                                                                              Chief Justice

  142525                                                                            Michael F. Cavanagh
                                                                                          Marilyn Kelly
                                                                                    Stephen J. Markman
                                                                                    Diane M. Hathaway
  PEOPLE OF THE STATE OF MICHIGAN,                                                      Mary Beth Kelly
            Plaintiff-Appellee,                                                         Brian K. Zahra,
                                                                                                   Justices
  v                                                      SC: 142525
                                                         COA: 300421
                                                         Wayne CC: 08-018289-FH
  JORGE IVAN TORRES-DAVID,
            Defendant-Appellant.

  _________________________________________/

        On order of the Court, the application for leave to appeal the December 15, 2010
  order of the Court of Appeals is considered, and it is DENIED, because we are not
  persuaded that the questions presented should be reviewed by this Court.

          MARILYN KELLY, J. (concurring).

         I concur in the order denying defendant’s application for leave to appeal because I
  believe that the trial court properly scored offense variable (OV) 10 at 15 points. I write
  separately to point out that Justice MARKMAN, in his dissent, sadly misinterprets and
  misrepresents the meaning of the Court’s order in this matter. Contrary to his statement,
  the Court does not accord greater protections in our criminal law to illegal aliens than to
  law-abiding citizens and legal aliens. What the Court does is recognize that the length of
  a criminal’s incarceration properly depends on whether his or her crime included
  exploitation of a vulnerable victim. Michigan law established long ago that a criminal’s
  sentence should be longer if the criminal wronged a person knowing that the person
  wronged was an easy target. What happened in this case is that the defendant stole from
  victims who he believed would not report him because they were undocumented aliens.
  It is hardly an irresponsible application of justice to impose a harsher sentence on a
  person whose criminal activity exploits vulnerable victims than on one that does not.

         The error in Justice MARKMAN’s reasoning has its origins in his focus on the
  victims’ status as undocumented aliens rather than on the offender’s conduct. OV 10
  involves “exploitation of a vulnerable victim.”1 It directs courts to assess 15 points for
  1
      MCL 777.40(1).
                                                                                         2

this OV if predatory conduct was involved in the defendant’s crime. It defines predatory
conduct as “preoffense conduct directed at a victim for the primary purpose of
victimization.”2 Thus, the attention of OV 10 is on the offender’s conduct and on
whether that conduct was designed to make the victim easier to victimize.

        The facts of this case are that defendant arranged for friends to rob the victims
after learning that one victim had recently withdrawn a large sum of money from the
bank. The record supports the trial court’s conclusion that defendant also targeted the
victims because he believed that, as undocumented aliens, they would be reluctant to
report his crime to the authorities. I believe that this constituted “predatory conduct” as
defined in OV 10.3 Also, most would agree that someone who is thought to be reluctant
to report a crime to the authorities is vulnerable.

       Nonetheless, Justice MARKMAN concludes that the Legislature intended that
undocumented aliens as a class be summarily excluded from consideration as vulnerable
victims under OV 10. He enlarges the class excluded to encompass anyone who is
reluctant to report being victimized to the police because he or she is not a “law-abiding
citizen[].”4 He apparently believes that the Legislature intended there to be such a class
because it wanted crimes committed against lawbreakers less severely punished than
those committed against law-abiding people.

        However, Justice MARKMAN overlooks that the Legislature chose when drafting
OV 10 to include drug abusers as vulnerable victims, entitled to the same protection as
law-abiding people. Thus, admittedly, it intended at least some people who engage in
illegal activity to be included as vulnerable victims in OV 10. The Legislature also
included alcoholics. Considering these facts, I see no textual basis to infer that it
intended to exclude undocumented aliens and all other “lawbreakers” reluctant to report a
crime to the police from the pool of vulnerable victims.

       I also note that Justice MARKMAN’s analysis irreconcilably conflicts with his
analysis in People v Huston.5 In Huston, writing for a majority of the Court, he
concluded that the offender’s conduct, not the victim’s status, is dispositive for OV 10
purposes. He reasoned that an offender who lies in wait to victimize a potential victim
engages in predatory conduct regardless of who is ultimately victimized.6 That would
include undocumented aliens. However, in this case, he concludes that the victims’ status

2
    MCL 777.40(3)(a).
3
    Id.
4
    Post at ___.
5
    People v Huston, 489 Mich 451 (2011).
6
    Id. at 463.
                                                                                             3

as undocumented aliens precludes a finding that they are vulnerable victims, irrespective
of the offender’s conduct.

       Justice MARKMAN’s approach creates two classes of victims: (1) undocumented
aliens and lawbreakers who are reluctant to report being victimized to the police and
(2) alcoholics, drug abusers, and law-abiding people. Justice MARKMAN concludes that
the Legislature intended to exclude the former “as a class” from consideration as
vulnerable victims, but include the latter.

        Because OV 10 focuses on an offender’s conduct, not on the victim’s status, it
punishes those who engage in criminal exploitative conduct more harshly than those who
do not. If, as here, an offender robs undocumented aliens knowing that they will be less
likely than others to report the crime to the police, the offender exploits that vulnerability.

        I believe that undocumented aliens are vulnerable victims for purposes of OV 10
when offenders view them as easy targets because they fear contact with the police. It is
for that reason that 15 points were properly assessed for OV 10. Moreover, I disagree
with the Justice MARKMAN’s suggestion that the delineation of specific classes of
vulnerable victims in the statute leads to the inference that the Legislature intended to
exclude undocumented aliens and lawbreakers who are reluctant to report crimes to the
police.

       Thus, I concur in the order denying leave to appeal.

       MARKMAN, J. (dissenting).

       I respectfully dissent from the order denying leave to appeal. At issue is the trial
court’s assessment of 15 points under offense variable 10 (OV 10) of the sentencing
guidelines, which pertains to the exploitation of a “vulnerable victim.” MCL 777.40(1).
The victims in this case were known to be illegal aliens, and the trial court reasoned that
their “vulnerability” was a function of their presumed reluctance to report to the
authorities criminal activities directed against them. I would reverse the trial court and
order it to assess zero points for OV 10.

       I do not agree that illegal alien status somehow transforms those persons into
“vulnerable” victims, so that crimes committed against them are to be punished more
severely than identical crimes against citizens and legal aliens. Were that to be true, it
would presumably also be the case that any crime knowingly committed against another
criminal would be punished more severely than an identical crime against a law-abiding
citizen. I do not believe the Legislature had any intention to single out illegal aliens and
subject those who commit crimes against this class of persons to greater punishment than
those who commit crimes against any other person.
                                                                                             4

        “Vulnerability” is defined in MCL 777.40(3)(c) as “the readily apparent
susceptibility of a victim to injury, physical restraint, persuasion, or temptation,” and
MCL 777.40(1)(b) provides illustrations of covered vulnerabilities, e.g., “a victim’s
physical disability, mental disability, youth or agedness, or a domestic relationship . . . .”
MCL 777.40(1)(c) further refers to situations in which an “offender exploit[s] a victim by
his or her difference in size or strength, or both, or exploit[s] a victim who was
intoxicated, under the influence of drugs, asleep, or unconscious.” These illustrations,
although not exclusive, shed light on what the Legislature meant by a “vulnerable
victim,” and illegal alien status, in my judgment, is in no way even remotely similar to
these illustrations. It is hardly a “vulnerability” akin to a physical or mental disability, or
analogous to youth or agedness, that as a result of his victimization an illegal alien may
be rendered more likely to come into contact with law enforcement authorities or more
likely to be held accountable for his lawbreaking. Only a highly strained and
unreasonable reading of MCL 777.40 would equate these “vulnerabilities.”

       Finally, Justice MARILYN KELLY entirely misapprehends my analysis. I do not
believe that illegal aliens are “a class [to] be summarily excluded from consideration as
vulnerable victims . . . .” Rather, if the “vulnerability” of an illegal alien is that of any
other person, e.g., if the illegal alien suffers from a physical disability or is the victim of
“predatory conduct,” a criminal perpetrator who has victimized an illegal alien will be
subject to having points assessed under OV 10 on the same basis as a criminal perpetrator
victimizing any other person. See People v Huston, 489 Mich 451 (2011). I simply do
not believe, as does Justice KELLY, that illegal alien status alone transforms a person into
a “vulnerable victim.” Indeed, I do not believe that any person’s reluctance to come into
contact with law enforcement authorities—because that person is himself an ongoing
lawbreaker or a fugitive from justice, for example—should be considered a
“vulnerability” for purposes of OV 10, whether that person is a citizen, a legal alien, or
an illegal alien. Crimes committed against persons who are lawbreakers, and therefore
reluctant to engage law enforcement authorities, should be treated with severity equal to
that for crimes committed against persons who are not lawbreakers, but there is no
reasonable basis in the law for treating crimes against persons who are lawbreakers with
greater severity.

       To the extent that criminal punishments deter lawbreakers, and to the extent that
greater punishments deter more than do lesser punishments, the majority today
establishes in the law of our state the remarkable proposition that persons known to be
illegal aliens will be accorded under our criminal law greater protections from
lawbreakers than will law-abiding citizens and legal aliens. It is a proposition with which
I disagree and that I cannot support.
                                                                                                       5



MARY BETH KELLY and ZAHRA, JJ., join the statement of MARKMAN, J.




                 I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
           foregoing is a true and complete copy of the order entered at the direction of the Court.
                 September 16, 2011                  _________________________________________
y0913                                                                Clerk
