Filed 7/31/14 P. v. Alamo CA5




                        NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT


THE PEOPLE,

         Plaintiff and Respondent,                                                     F065827

                   v.                                                     (Super. Ct. No. 10CM2603)

ERNESTO ALVARADO ALAMO,                                                            OPINION

         Defendant and Appellant.


                                                   THE COURT
         APPEAL from a judgment of the Superior Court of Kings County. Robert Shane
Burns, Judge.
         Jonathan E. Berger, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Wanda
Hill Rouzan, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-


        Before Kane, Acting P.J., Franson, J., and Peña, J.
        Appellant, Ernesto Alvarado Alamo, pleaded no contest to felony child
endangerment (Pen. Code, § 273a, subd. (a)) and misdemeanor driving with a blood
alcohol content of .08 percent or higher (Veh. Code, § 23152, subd. (b)). The court
imposed the six-year upper term on the former offense and a concurrent 180-day term on
the latter.
        On appeal, appellant contends the sentencing court, in imposing the upper term,
erroneously failed to consider certain circumstances in mitigation. Alternatively,
appellant argues that if this claim is deemed forfeited by counsel’s failure to urge the
sentencing court to consider those mitigating factors, such failure deprived appellant of
his constitutional right to the effective assistance of counsel. We affirm.
                  FACTUAL AND PROCEDURAL BACKGROUND
The Instant Offenses
        Shortly before 8:10 p.m. on June 13, 2010, Hanford Police Officer Oscar Cavazos
observed a pickup weaving, nearly striking a raised curb twice and straddling two lanes.
Appellant was the driver. After observing the vehicle for two or three minutes, the
officer stopped the vehicle. As Cavazos approached on foot, he saw that another man,
Sergio Acosta, was sitting in the front passenger seat, holding his 20-month-old child.
There was a child safety seat in the back part of the truck’s cab.
        Upon speaking to appellant, Cavazos observed that appellant’s speech was slurred,
he had red, watery eyes, and he smelled strongly of alcoholic beverage. Appellant stated
he had consumed five or six beers. It was stipulated for purposes of the preliminary
hearing that appellant’s blood alcohol content was .23 percent.
        In response to questioning by the officer, Acosta stated he removed the child from
the safety seat as they were traveling because the child was crying.
Additional Factual Background
        Appellant was sentenced in September 2012. Between August 2004 and May
2012, he suffered two misdemeanor convictions of violating Vehicle Code section 23152,

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subdivision (b), two misdemeanor convictions of violating Vehicle Code section 23152,
subdivision (a) (driving while intoxicated), two convictions of driving without a license
(Veh. Code, § 12500, subd. (a)), and one conviction of driving with a suspended license
(Veh. Code, § 14601.5). Also during this time period he received three grants of five
years’ probation.
       The report of the probation officer (RPO) lists the following circumstances in
aggravation: The 20-month-old victim was particularly vulnerable, appellant was
convicted of another offense for which a consecutive sentence could have been imposed
but for which the court imposed a concurrent term, appellant’s prior convictions are
numerous or of increasing seriousness, and appellant’s prior performance on probation
was unsatisfactory. The RPO lists a single factor in mitigation, viz., appellant
“voluntarily acknowledged wrongdoing prior to arrest or at an early stage of the criminal
process.”
       Appellant, who was 38 years old at the time of sentencing, reported that at the age
of 21, he began drinking six to eight beers daily and has continued this pattern “until the
present time.” Appellant considers himself to be an alcoholic.
       The RPO recommended imposition of the four-year middle term on the child
endangerment conviction and a concurrent 180-day term on the Vehicle Code violation.
Preliminary Hearing
       At the preliminary hearing in November 2010, defense counsel argued that the
charge of felony child endangerment should be reduced to a misdemeanor under Penal
Code section 17, subdivision (b) (section 17(b)) on the following grounds: Acosta, as the
victim’s father, had the “primary responsibility” for endangering the victim. But,
although appellant drove the car while intoxicated and was thus, “in a way,” the “primary
perpetrator,” “in [another] way,” appellant’s responsibility was “secondary” because he
“failed to exercise his veto power” over Acosta’s act of removing the victim from the
safety seat.

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       The court refused to reduce the offense to a misdemeanor but stated, “it is a close
call and I do think that to a certain degree it’s mitigating as to [appellant] since it’s not his
child and the father of the child apparently was in the car who should have been
exercising primary control.”
Sentencing Hearing
       The sentencing hearing was conducted more than 19 months after the preliminary
hearing, before the same judge.
       Early in the sentencing hearing, the court stated that its “tentative ruling under
People versus Scott,”1 was to deny probation and, based on the following, impose the
aggravated term of six years on the child endangerment conviction: “[T]he victim being
only 20 months old was extremely vulnerable”; appellant’s “prior convictions are
numerous”; and “his performance on probation has been unsatisfactory.”
       Defense counsel, offered the opportunity to respond, argued for a grant of
probation, asserting that appellant had shown remorse, the instant child endangerment
conviction was appellant’s first felony conviction, and appellant “admitted his guilt at an
early stage in the proceeding.”
       Counsel concluded his argument with the following: “While [appellant] bears the
responsibility for his actions, he shares that responsibility with the father of the child who
chose to bring that child into the car while they were driving, and that doesn’t mitigate
[appellant’s] actions in this case, but he does admit to the Court and to probation that
what he did was 100 percent wrong, and he would ask the Court instead of sentencing
him to state prison, to give him an opportunity to be on probation and to seek treatment
for his alcoholism, which he readily admits that he does have an addiction to alcohol, and
based on that factor I would ask the Court to mitigate the actions and the violations in this
matter.”
1      See People v. Scott (1994) 9 Cal.4th 331 (Scott).



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         Thereafter, the court imposed the upper term, reiterating that it had “found a
number of aggravating factors,” and had “found no mitigating factors.”
                                        DISCUSSION
Claim of Failure to Consider Circumstances in Mitigation
         When, as here, the criminal statute under which the defendant is convicted
specifies three possible terms, the decision to impose the upper, middle or lower term
rests within the sound discretion of the trial court. (Pen. Code, § 1170, subd. (b); Cal.
Rules of Court, rule 4.420(a).)2 In making this selection, “the sentencing judge may
consider circumstances in aggravation or mitigation, and any other factor reasonably
related to the sentencing decision.” (Rule 4.420(b).) Circumstances in mitigation are
listed in rule 4.423, and “[r]elevant criteria enumerated in [the Rules of Court] must be
considered by the sentencing judge....” (Rule 4.409, italics added.) Moreover,
circumstances enumerated in the Rules of Court “are illustrative and not exclusive. Other
factors both in aggravation and mitigation should be considered under [former] rule
408(a) [now rule 4.408(a)].” (People v. Berry (1981) 117 Cal.App.3d 184, 193, fn. 4.)
“A remand for resentencing is required when the court fails to consider relevant
mitigating factors.” (People v. Kelley (1997) 52 Cal.App.4th 568, 582 (Kelley).)
         Appellant first argues that in imposing the upper term, the court erroneously failed
to consider “the mitigating factor that the child’s father, not appellant, bore the primary
responsibility for the danger to the child.” (Unnecessary emphasis omitted.) Appellant,
however, did not raise this point below. Indeed, as indicated above, he effectively
conceded it by telling the court that the fact that it was the father of victim, not appellant,
“who chose to bring that child into the car” “doesn’t mitigate [appellant’s] actions in this
case.”


2        All rule references are to the California Rules of Court (Rules of Court).



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       In Scott, supra, 9 Cal.4th 331, our Supreme Court held that where there has been a
meaningful opportunity to do so, a criminal defendant who fails to object to a “trial
court’s failure to properly make or articulate its discretionary sentencing choices” cannot
raise the claim for the first time on appeal. (Id. at p. 353.) Forfeited challenges are those
that “involve sentences which, though otherwise permitted by law, were imposed in a
procedurally or factually flawed manner.” (Id. at p. 354.) A meaningful opportunity to
object simply means that counsel has the opportunity to address the court on the
sentencing issue involved. (People v. Zuniga (1996) 46 Cal.App.4th 81, 84.)
       Here, appellant failed to object to the court’s failure to consider a purported
circumstance in mitigation, despite being given the opportunity to do so. His argument
on appeal is, in essence, a claim that the court “fail[ed] to properly make ... [a]
discretionary sentencing choice[].” (Scott, supra, 9 Cal.4th at p. 353.) Thus, under Scott,
appellant’s claim of error is forfeited. (Kelley, supra, 52 Cal.App.4th at pp. 581-582
[under Scott, the claim that trial court failed to consider circumstances in mitigation may
not be raised for first time on appeal]; see generally People v. Seijas (2005) 36 Cal.4th
291, 301-302 [defendant’s failure to make a timely and specific objection on the ground
asserted on appeal renders that ground not cognizable].)
       Appellant argues he is not precluded from raising on appeal the claim the court
failed to consider as a circumstance in mitigation his purportedly lesser responsibility for
the endangerment of the victim because (1) by arguing for a grant of probation and (2) by
countering the court’s statement that it found no circumstances in mitigation with
argument that certain factors did, in fact, constitute circumstances in mitigation, defense
counsel made clear to the court he was challenging the imposition of the upper term.
This was sufficient, appellant argues, to avoid the operation of the Scott forfeiture rule.
We disagree.
       “The reason for [the forfeiture] rule is that ‘[i]t is both unfair and inefficient to
permit a claim of error on appeal that, if timely brought to the attention of the trial court,

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could have been easily corrected or avoided.’ [Citations.] ‘[T]he forfeiture rule ensures
that the opposing party is given an opportunity to address the objection, and it prevents a
party from engaging in gamesmanship by choosing not to object, awaiting the outcome,
and then claiming error.’” (People v. French (2008) 43 Cal.4th 36, 46 (French).)
       A general objection to the sentence imposed, or about to be imposed, does not
bring to the court’s attention the claim that a particular factor should be considered as a
circumstance in mitigation. Had appellant made the claim below that he now raises on
appeal, any error could have been “‘easily corrected or avoided.’” (French, supra, 43
Cal.App.4th at p. 46.) A specific objection was required. (Kelley, supra, 52 Cal.App.4th
at p. 582.)
       Appellant also argues reversal and remand for resentencing is required because the
court failed to consider appellant’s alcoholism as a circumstance in mitigation. We
disagree.3
       Appellant relies in large part on People v. Simpson (1979) 90 Cal.App.3d 919
(Simpson), where the court held: “[B]efore sentencing an alcoholic defendant under the
[Determinate Sentence Law], the trial court must consider the possibility that his
alcoholism is a circumstance in mitigation within the meaning of [former] rule 423 [now
rule 4.423], and must then weigh this factor along with the other relevant circumstances.”
(Id. at p. 928, italics added.)
       However, in our view, although alcoholism may be a mitigating factor, it is not
always a mitigating factor. (People v. Reyes (1987) 195 Cal.App.3d 957, 960 (Reyes);
People v. Regalado (1980) 108 Cal.App.3d 531, 538-540 (Regalado).) In Regalado, the
appellate court upheld the “sentencing court’s implicit conclusion that defendant’s drug

3       We assume, without deciding, that appellant has not forfeited this contention. We
note that, as indicated earlier, at the sentencing hearing, defense counsel stated:
“[appellant] readily admits that he does have an addiction to alcohol, and based on that
factor I would ask the Court to mitigate the actions and the violations in this matter [sic].”



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use did not influence the commission of the burglary to an extent that ‘partially excused’
its commission[,]” in part because although the defendant’s substance abuse problem was
a longstanding one, the defendant had failed to take advantage of opportunities to address
his problem. (Regalado, at p. 539.)
       In a similar vein, the Reyes court held: “As a policy matter, when a defendant has
a drug addiction or substance abuse problem, where the defendant has failed to deal with
the problem despite repeated opportunities, where the defendant shows little or no
motivation to change his life style, and where the substance abuse problem is a
substantial factor in the commission of crimes, the need to protect the public from further
crimes by that individual suggests that a longer sentence should be imposed, not a shorter
sentence. For example, the felony drunk driver who is suffering from an uncontrolled
alcoholism should be sentenced to a longer term, not a shorter one, in order to prevent
him from driving under the influence again.” (Reyes, supra, 195 Cal.App.3d at p. 963.)
       The Reyes court further held: “The error in the Simpson decision is that it
concluded that if the defendant’s mental or physical condition of alcoholism was a
substantial factor in the commission of the crime, then it necessarily ‘significantly
reduced his culpability for the crime’ or made the crime ‘partially excusable.’” (Reyes,
supra, 195 Cal.App.3d at p. 963.) Reyes concluded that Simpson was wrongly decided.
(Ibid.) We agree with Reyes and reject the holding in Simpson that drug or alcohol
addiction is always a mitigating factor.
       In the instant case, although the record shows appellant has a longstanding
problem with alcohol use and driving while under the influence of alcohol, there is
nothing in the record to suggest he has taken any steps to deal with his problem. Thus,
appellant has not shown that his alcoholism was a mitigating factor under the
circumstances of the instant case. (Reyes, supra, 195 Cal.App.3d at p. 963; cf. Regalado,
supra, 108 Cal.App.3d at p. 539; see People v. Superior Court (Alvarez) (1997) 14
Cal.4th 968, 977-978 [“‘The burden is on the party attacking the sentence to clearly show

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that the sentencing decision was irrational or arbitrary’”].) The sentencing court’s
conclusion that appellant’s alcoholism was not a mitigating factor—a conclusion implicit
in its finding that there were no mitigating factors—therefore does not establish that the
court failed to consider a relevant mitigating factor. (See In re Handa (1985) 166
Cal.App.3d 966, 973 [“many alleged factors in mitigation are disputable either because
… they may not be mitigating under the circumstances of a particular case[, and w]here
an alleged factor in mitigation is disputable, the court may find an absence of mitigating
factors and need not explain the reason for its conclusion” (italics added].)
Claim of Ineffective Assistance of Counsel
       Appellant argues that if, as we have concluded, defense counsel’s failure to argue
that appellant’s lesser responsibility for the instant felony was a mitigating factor
precludes him from raising that claim on appeal, such failure, and counsel’s concession
of the point, constituted ineffective assistance of counsel requiring reversal.
       To establish ineffective assistance of counsel a defendant must establish (1) that
his counsel’s performance was deficient under an objective standard of professional
competency, and (2) that he was prejudiced by such deficient performance, i.e., that there
is reasonable probability that, but for counsel’s error(s), a more favorable determination
would have resulted. (People v. Holt (1997) 15 Cal.4th 619, 703.) Since the failure of
either prong of an ineffective assistance of counsel claim is fatal to establishing the claim,
we need not address both prongs if we conclude appellant cannot prevail on one of them.
(People v. Cox (1991) 53 Cal.3d 618, 656, disapproved on other grounds in People v.
Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) Here, we express no opinion on the first
prong of the required showing, and address only the issue of prejudice.
       Appellant argues he was prejudiced by counsel’s failures because, at the
preliminary hearing almost two years prior, the court stated appellant’s section 17(b)
argument presented a “close call,” and indicated that the fact Acosta “should have been
exercising primary control” was “to a certain degree[,] … mitigating.” Appellant asserts

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that “[t]he only reasonable interpretation” of the record is that at sentencing, the court
forgot making these comments and that if defense counsel had raised the same argument
at sentencing, it is reasonably probable the court would have remembered, concluded that
appellant was less responsible for endangering the victim than Acosta, considered that to
be a mitigating factor, and imposed a lesser sentence. We disagree.
       In our view, the fact, if it be a fact, that Acosta was more culpable than appellant
was not a mitigating factor. Appellant got in his vehicle after drinking five or six beers
and, while intoxicated, drove with an infant in the car. Even with the child in a safety
seat, this is an extremely reckless act. And, when the danger increased, by Acosta’s act
of removing the child from the safety seat, appellant kept driving. The mere fact that
Acosta may have been more culpable does not reduce the degree of appellant’s
culpability. (Cf. Simpson, supra, 90 Cal.App.3d at p. 926 [record did not establish
mitigating factor where defendant, convicted of second degree burglary, argued he “could
have done considerably more damage by smashing other things and that he could have
‘cleaned out’ the store with the help of friends”]; see People v. Reid (1982) 133
Cal.App.3d 354, 371 [where defendant argued that “his decision to use a toy gun [in
committing robberies] created less potential for harm to others than if he had used a
loaded real gun,” appellate court stated, “While the [trial] court could possibly have
considered the use of a toy gun as a mitigating factor, it certainly was not required to use
it as a mitigating factor”].) Assuming for the sake of argument that appellant’s purported
lesser degree of culpability as urged by appellant could constitute a valid circumstance in
mitigation, it would hardly be a compelling one.
       Moreover, there were no other mitigating factors4 and the court found three
circumstances in aggravation, all of which are supported by the record. Had counsel
4      The sentencing court rejected defense counsel’s argument that appellant, as
indicated in the RPO, admitted his guilt at an early stage in the proceeding. Appellant
does not challenge this conclusion.


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argued the additional, at best insignificant, factor urged by appellant, it is not reasonably
probable the court would have imposed a less severe sentence. Therefore, appellant has
not established that he was denied his right to the effective assistance of counsel.
       Finally, appellant argues that if his claim that the court erroneously failed to
consider his alcoholism as a mitigating factor is forfeited by his counsel’s failure to raise
it below, such failure constituted ineffective assistance of counsel. Thus far, we have
assumed, without deciding, that defense counsel adequately put the sentencing court on
notice of his argument regarding appellant’s alcoholism as a mitigating factor, and that
therefore that argument is properly before us. But, if we were to reach the forfeiture issue
and conclude, as respondent argues, that this claim is forfeited, we would, without
deciding whether counsel’s performance was objectively reasonable, reject appellant’s
ineffective assistance of counsel argument on the ground that because, as demonstrated
above, the record does not establish that appellant’s alcoholism qualifies as mitigating
factor, the failure to raise the point cannot be deemed prejudicial.
                                      DISPOSITION
       The judgment is affirmed.




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