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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,

v.

EDGAR FERNANDO ALATORRE,

 Defendant and Appellant.

 G061507

 (Super. Ct. No. 20NF0719)

 O P I N I O N

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.
2

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 

1170.

1

 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 

People v. Alatorre (Jan. 11, 2022, G059547) [nonpub. opn.] (Alatorre I).)2 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. 

1

Unless noted otherwise, all further statutory references are to the Penal Code.

2

We granted respondent’s unopposed request to take judicial notice of the appellate record in that 

case.
3

Four days after the incident, the police executed a search warrant at 

appellant’s residence. Among other things, they found a loaded semiautomatic handgun

and four baggies of methamphetamine in his bedroom. 

Following a jury trial, appellant was acquitted of attempted murder, but he 

was convicted of assaulting Kelsey with a semiautomatic firearm and found to have 

personally used a firearm during that offense. (§§ 245, subd. (b), 12022.5, subd. (a).) He 

was also convicted of three different possession offenses stemming from the warrant 

search. (§ 29800, subd. (a)(1); Health & Saf. Code, §§ 11370.1, 11378.) The trial court 

sentenced appellant to the upper term of nine years for the assault, plus the upper term of 

ten years for the firearm enhancement. In addition, the court imposed a combined term 

of four years and eight months on the remaining counts, but it stayed execution of a 

three-year term on one of those counts pursuant to section 654. Thus, the full length of 

appellant’s prison sentence was 20 years and 8 months. 

FIRST APPEAL

We affirmed appellant’s convictions but reversed his sentence due to the 

trial court’s failure to apply section 654 more broadly to include not just one, but two of 

the offenses arising from the warrant search. (Alatorre I, supra, G059547, at pp. 16-19.) 

In remanding the matter for full resentencing, we ordered the trial court to apply the 

current version of section 1170, which was amended during appellant’s appeal. (Id., as 

modified by Feb. 3, 2022 order denying petn. for rehg.) As noted at the outset, that 

section generally bars an upper term sentence unless the factors used to support it have 

been stipulated to by the defendant or found true beyond a reasonable doubt by the judge 

or jury. (§ 1170, subds. (b)(1)-(3).) 

RESENTENCING

At the resentencing hearing, the trial court imposed the middle term of six 

years on the assault count, a three-year reduction from its original sentence. But the court 

reimposed the upper term of 10 years for the firearm enhancement. After applying 
4

section 654, it then added one year on the remaining counts, bringing appellant’s 

aggregate sentence to 17 years in prison. 

In formulating its sentencing decision, the court analyzed all of the 

aggravating and mitigating factors that were potentially applicable to appellant’s 

sentence. (See Cal. Rules of Court, rules 4.421 & 4.423.) The court also allowed 

appellant to make a statement on his own behalf. The court accepted appellant’s 

representations that he was a hardworking father before he started using drugs and that he 

was trying to turn his life around in prison. But the court was skeptical of appellant’s 

claim that he did not intentionally discharge his gun in assaulting Kelsey. 

Irrespective of that issue, the court determined appellant deserved the upper 

term on the firearm enhancement because his gun use caused Kelsey’s injury, “as 

illustrated by the exhibit and testimony received at trial.” That was a reference to a 

photographic exhibit showing Kelsey’s headwound and appellant’s admission about 

striking her in the head with his gun. While acknowledging appellant was acquitted of 

attempted murder, the court was concerned “this was an extremely dangerous situation 

which easily could have resulted in the death of another[.]” 

DISCUSSION

Appellant asserts the trial court prejudicially erred in relying on Kelsey’s 

head injury to impose the upper term on the firearm enhancement because the jury made 

no findings as to whether the injury was actually attributable to his gun use. The 

Attorney General concedes the jury was never called upon to decide the precise cause of 

Kelsey’s headwound, but he contends that is immaterial because the uncontroverted 

evidence proved it was from appellant’s gun use, which is why he was deserving of 

aggravated punishment. Respondent has the better argument. 

Effective January 1, 2022, section 1170 provides, “The court may impose a 

sentence exceeding the middle term only when there are circumstances in aggravation of 

the crime that justify the imposition of a term of imprisonment exceeding the middle 
5

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, subd. (b)(2), as amended by Senate Bill No. 567 

(Stats. 2021, ch. 731, § 1.3).) The statute is designed to ensure a defendant is not 

subjected to enhanced punishment for aggravating factors he neither personally admitted 

nor were found true beyond a reasonable doubt by a trier of fact. (See Cunningham v. 

California (2007) 549 U.S. 270, 274-275 [examining the constitutional ramifications of 

increasing a defendant’s sentence beyond the statutorily prescribed term based on factors 

that are not admitted or proven beyond a reasonable doubt].) 

As a preliminary matter, we note appellant never objected to the trial 

court’s consideration of Kelsey’s headwound as an aggravating factor on the firearm 

enhancement. Because appellant did not challenge the basis for the trial court’s decision 

to impose the upper term on the enhancement, he forfeited his right to challenge that term 

on appeal. (People v. Anderson (2023) 88 Cal.App.5th 233, 242; People v. Flowers 

(2022) 81 Cal.App.5th 680, 683, review granted Oct. 12, 2022, S276237.) 

However, we need not hang our hat on the forfeiture rule because, as 

appellant admits, a trial court’s reliance on an improper aggravating factor to impose an 

upper term is subject to harmless error analysis. (People v. Sandoval (2007) 41 Cal.4th 

825.) Although a variety of standards have been used to assess harmless error in this 

context (see People v. Dunn (2022) 81 Cal.App.5th 394, review granted Oct 12, 2022, 

S275655), it is universally accepted that an upper term sentence will be upheld on appeal 

if the reviewing court is convinced beyond a reasonable doubt the jury would have found 

every improper factor on which the trial court relied to be true beyond a reasonable 

doubt. (People v. Lopez (2022) 78 Cal.App.5th 459, 465-467.) In other words, if the 

evidence of the improper factors is so overwhelming as to be beyond dispute, then it 

doesn’t matter if the defendant did not admit them, or the jury did not find them to be 

true. (Ibid.) 
6

At appellant’s resentencing hearing, the trial court alluded to a variety of 

aggravating factors. For example, in denying appellant probation, the trial found it 

significant appellant had previously suffered several gun-related convictions. And, at 

another point in the hearing, the court suggested appellant may have targeted Kelsey due 

to her sexual orientation. But when it came to sentencing appellant on the section 

12022.5 firearm enhancement, the court cited a single factor in aggravation: Appellant’s 

firearm use caused Kelsey’s injury. The court did not cite any other aggravating factors –

or any mitigating factors – in connection with appellant’s use of his gun. 

Under section 12022.5, a defendant is subject to enhanced punishment if he 

“personally uses a firearm in the commission of a felony[.]” For purposes of the statute, 

the word “uses” is broadly defined to include brandishing, hitting someone with, or 

discharging a firearm. (In re Tameka C. (2000) 22 Cal.4th 190, 197.) Since the 

enhancement can be triggered by mere brandishing, neither physical injury to the victim 

nor the intent to harm is required. (Id. at pp. 198-199.) Therefore, if the defendant’s 

conduct goes beyond brandishing and results in physical injury to the victim, it may be 

considered aggravated for purposes of imposing the upper term on the enhancement. 

(People v. Brown (2000) 83 Cal.App.4th 1037, 1043-1044; People v. Douglas (1995) 36 

Cal.App.4th 1681, 1691-1692.)

Appellant’s conduct went far beyond brandishing. By his own admission, 

he struck Kelsey with his gun while he was arguing with her and Mia at his residence. 

The evidence also undisputedly established the gun discharged around that point. After

that, Kelsey became frightened because blood was pouring down her neck from a twoinch gash on the side of her head. She said she had a hard time stopping the bleeding 

until the wound was treated later on at the hospital. This evidence firmly established a 

causal connection between appellant’s gun use and Kelsey’s injury. And in closing 

argument, even defense counsel admitted Kelsey’s head wound was attributable to 

appellant’s use of the gun. 
7

On this record, we are convinced beyond a reasonable doubt that had the 

question been put to them, the jurors, using that same standard, would have found 

appellant’s firearm use went beyond mere brandishing and resulted in physical injury to 

Kelsey. Indeed, there is no “‘“evidence that could rationally lead to a contrary finding.” 

[Citation.]’ [Citation.]” (People v. Lopez, supra, 78 Cal.App.5th at p. 465.) That being 

the case, the trial court’s reliance on Kelsey’s head injury to impose the upper term on the 

firearm use enhancement is not cause for reversal. (People v. Myles (2012) 53 Cal.4th 

1181, 1222 [upholding upper term sentence on firearm enhancement based on the 

strength of the state’s evidence and counsels’ arguments regarding the pertinent 

aggravating factors, even though those factors were neither stipulated to nor found true 

beyond a reasonable doubt].) 

DISPOSITION

The judgment is affirmed.

BEDSWORTH, J.

WE CONCUR:

O’LEARY, P. J.

MOORE, J.