People v. Alvarado, No. H020636.

CourtCalifornia Court of Appeals
Writing for the CourtWunderlich
Citation104 Cal.Rptr.2d 624,87 Cal.App.4th 178
PartiesThe PEOPLE, Plaintiff and Respondent, v. Carlos Henry ALVARADO, Defendant and Appellant.
Decision Date16 February 2001
Docket NumberNo. H020636.
104 Cal.Rptr.2d 624
87 Cal.App.4th 178
The PEOPLE, Plaintiff and Respondent,
Carlos Henry ALVARADO, Defendant and Appellant.
No. H020636.
Court of Appeal, Sixth District.
February 16, 2001.
Review Denied May 23, 2001.

[104 Cal.Rptr.2d 627]

[87 Cal.App.4th 183]

Michael Satris by Appointment of the Sixth District Appellate Program, for Defendant and Appellant.

Bill Lockyer, Attorney General, David Druliner, Chief Asst. Atty. General, Ronald A. Bass, Senior Asst. Atty. General, Rene A. Chacon, Supervising Deputy Atty General, Jeremy Friedlander, Deputy Atty. General, for Plaintiff and Respondent.


I. Introduction

Penal Code section 667.61,1 commonly known as the "One Strike" law (People v. Rayford (1994) 9 Cal.4th 1, 8, 36 Cal. Rptr.2d 317, 884 P.2d 1369), mandates indeterminate life terms for those who, among other things, commit a rape "during the commission of a burglary." (§ 667.61, subds.(b) and (e)(2).)2 In this case, we hold that the phrase "during the commission of a burglary" includes the period of time that a burglar remains on

104 Cal.Rptr.2d 628

the premises after entry and extends until the burglar has reached a place of temporary safety.

87 Cal.App.4th 184
II. Statement of the Case

A jury convicted defendant Carlos Henry Alvarado of residential burglary, residential robbery, false imprisonment, and forcible rape and also found that the rape victim was elderly and that the rape occurred during the commission of a burglary. The court imposed a 15-year-to-life term for the rape, a consecutive and an aggravated term of six years for the robbery with a one-year enhancement because the victim was elderly. The court stayed the sentences imposed for residential burglary and false imprisonment under section 654.

On appeal from the judgment, defendant claims there was insufficient evidence the rape occurred during the burglary and that the trial court erred in failing to define the statutory phrase during the commission of a burglary. He also claims the court erred in using the same facts to impose the life term for rape and the aggravated term for robbery, failing to state reasons for making the robbery term and enhancement consecutive to the life term, and failing to stay the sentence for robbery under section 654. Last, defendant claims his sentence violates the constitution proscriptions against cruel and/or unusual punishment.

We affirm the judgment.

III. Facts

At about 10 p.m. on December 25, 1998, defendant broke into the home of his 81 year old neighbor, who was on the phone with her friend. The victim screamed when she saw defendant. Her friend heard her and called the victim's daughter and granddaughter, who immediately left. Another relative called the police.

Meanwhile, defendant assaulted the victim and demanded her money. She gave him her purse, and he took the $10 and change that were inside. He demanded more and then pushed her into the bedroom, forced her onto the bed, and raped her. He fled when he heard the victim's relatives arrive. Police also arrived and commenced a perimeter search of the area. They found defendant squatting behind a fence next door to the victim's house. His shirt was bloody, and when asked if he was all right, he responded, "I needed drugs, I needed drugs. I did it because I needed drugs." He spoke loudly and rapidly, he was sweating profusely, and his pupils were dilated.

87 Cal.App.4th 185

When arrested, defendant had the victim's money in his pocket. After the victim identified him, he was taken to the station and booked. At that time, his blood alcohol content was .13. He waived his rights and told Sergeant Charles Wall of the San Jose Police Department that he used a stick to gain entry. He said he raped the victim but did not intend to hurt her.

Later, that evening, defendant spoke to Detective Michael King of the San Jose Police Department. Defendant was cooperative and extremely remorseful, disgusted, and ashamed of himself. He again waived his rights and explained what had happened. He said he had been drinking with his friends that day and volunteered to get more alcohol. Since he had no money, he decided to rob the elderly woman who lived across the street. He did not initially intend to rape her, but he became sexually aroused after taking her money and then decided to rape her. At King's suggestion, defendant wrote a letter of apology to the victim.

The Defense

Defendant's mother, two uncles, aunt, school counselor, and family friends testified to the effect that defendant is not a violent or aggressive person.

IV. Sufficiency of the Evidence of Rape during Commission of Burglary

Defendant contends the evidence does not support the jury's finding that the rape

104 Cal.Rptr.2d 629

occurred "during the commission of a burglary," as required under section 667.61, subdivision (e)(2) (hereafter section 667.61(e)(2)). He notes that a burglary is complete, in that the elements have been satisfied, the moment one enters a structure with the intent to commit theft or any felony. (See § 459; People v. Montoya (1994) 7 Cal.4th 1027, 1039-1040, 31 Cal. Rptr.2d 128, 874 P.2d 903.) Thus, he argues that under section 667.61(e)(2), a rape "during the commission of a burglary" does not include a rape after the burglary has been initially committed. Since the evidence shows that he raped the victim after entering and obtaining her money, he claims his One Strike sentence cannot stand. We reject defendant's interpretation of "during the commission of a burglary."

In construing statutes, we determine the legislative intent so as to effectuate the purpose of the statute, and the first place we look for an expression of intent is the statutory language. (People v. Broussard (1993) 5 Cal.4th 1067, 1071, 22 Cal. Rptr.2d 278, 856 P.2d 1134; People v. Overstreet (1986) 42 Cal.3d 891, 895, 231 Cal.Rptr. 213, 726 P.2d 1288.) We focus on the words and, giving them their ordinary meaning, determine

87 Cal.App.4th 186

whether they unequivocally express the Legislature's intent. "If no ambiguity, uncertainty, or doubt about the meaning of the statute appear, the provision is to be applied according to its terms without further judicial construction. [Citation.]" (Morse v. Municipal Court (1974) 13 Cal.3d 149, 156, 118 Cal.Rptr. 14, 529 P.2d 46; Arnett v. Dal Cielo (1996) 14 Cal.4th 4, 24, 56 Cal. Rptr.2d 706, 923 P.2d 1.) Although the defendant is entitled to the benefit of every reasonable doubt concerning the true interpretation of words or the construction of language used in a statute, we must avoid interpretations that would frustrate the purpose of a statute, render it nugatory, and lead to absurd results. (People v. Gonzalez (1990) 51 Cal.3d 1179, 1221, 275 Cal.Rptr. 729, 800 P.2d 1159; People v. Craft (1986) 41 Cal.3d 554, 559-560, 224 Cal.Rptr. 626, 715 P.2d 585; see, e.g., People v. Nguyen (1994) 23 Cal.App.4th 32, 43, 28 Cal.Rptr.2d 140; People v. Souza (1993) 15 Cal.App.4th 1646, 1652, 19 Cal.Rptr.2d 731.)

Section 667.61 mandates indeterminate sentences of 15 or 25 years to life for specified sex offenses that are committed under one or more "aggravating circumstances," such as when the perpetrator kidnaps the victim, commits the sex offense during a burglary, inflicts great bodily injury, uses a deadly weapon, sexually victimizes more than one person, ties or binds the victim, or administers a controlled substance to the victim. (People v. Palmore (2000) 79 Cal.App.4th 1290, 1295, 94 Cal.Rptr.2d 784; § 667.61, subd. (e)(1)(e)(7).) The purpose of the One Strike law is "to ensure serious and dangerous sex offenders would receive lengthy prison sentences upon their first conviction," "where the nature or method of the sex offense `place[d] the victim in a position of elevated vulnerability.' [Citation.]" (People v. Palmore, supra, 79 Cal.App.4th at p. 1296, 94 Cal.Rptr.2d 784, italics in Palmore.)

Section 667.61(e)(2) in particular reflects a legislative finding that the victims of a residential burglary are more vulnerable because they are inside a structure rather than out in public. (Cf. People v. Jackson (1992) 6 Cal.App.4th 1185, 1190, 8 Cal. Rptr.2d 239 [reaching same conclusion regarding § 212.5, proscribing residential robbery].) Courts have long recognized this to be true. (See, e.g., People v. Talbot (1966) 64 Cal.2d 691, 703, 51 Cal.Rptr. 417, 414 P.2d 633, overruled on other grounds in People v. Ireland (1969) 70 Cal.2d 522, 540, 75 Cal.Rptr. 188, 450 P.2d 580 ["Persons within buildings are in greater danger of suffering at the hands of felons bent on stealing from them or engaging in felonious conduct than persons outdoors would be"]; accord, People v. Wilson (1969) 1 Cal.3d 431, 440, 82 Cal.Rptr. 494, 462 P.2d 22; People v. Hicks (1993) 6 Cal.4th 784,

104 Cal.Rptr.2d 630

796-797, 25 Cal.Rptr.2d 469, 863 P.2d 714 [burglary aggravated the sexual offenses "by increasing the victim's vulnerability and decreasing her chance of escape"].) Moreover, common experience reveals

87 Cal.App.4th 187

that people usually lower their guard at home, especially when they are eating, reading, watching television, bathing, and sleeping. However, at those very times, they are unsuspecting and particularly vulnerable to shock and surprise by an intruder. (See People v. Wilson, supra, 1 Cal.3d at p. 440, 82 Cal.Rptr. 494, 462 P.2d 22; People v. Hicks, supra, 6 Cal.4th at pp. 796-797, 25 Cal.Rptr.2d 469, 863 P.2d 714; People v. Fleetwood (1985) 171 Cal. App.3d 982, 987, 217 Cal.Rptr. 612.) Thus, it is clear that in section 667.61(e)(2), the Legislature sought to deter by harsher punishment those who burglarize homes and exploit the vulnerability of people inside to commit sex offenses.

Turning to defendant's interpretation of the statutory language, we note that it would not deter sexual assaults against those whom a burglar finds inside a house after entering it. Clearly, however, the elevated vulnerability of people inside homes does...

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