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Name: People v. Alvarado
Case #: H020636
Court: CA Court of Appeal
District 6 DCA
Opinion Date: 02/16/2001
Subsequent History: Rev. den. 5/23/01
Summary

The failure to instruct the jury on the meaning of the phrase “during the commission of a burglary” included in Penal Code section 667.61, the “one strike” law, was not error because it has no technical legal meaning. Jurors would naturally understand the phrase to include at least the time that a burglar remains inside the structure after entry. Defense counsel’s failure to object to the trial court’s failure to state reasons justifying the imposition of consecutive terms does not constitute ineffective assistance of counsel where the objectives of the two offenses were clearly different and where the trial court was unimpressed by any factors in mitigation. Accordingly, because the record is silent as to why counsel declined to object, and because the failure to object was not unreasonable as a matter of law, the Court of Appeal rejected appellant’s claim of ineffective assistance of counsel. Moreover, even if counsel had objected, the error would have been harmless because it is not reasonably probable that the court would have been unable to provide sufficient reasons to justify consecutive sentences, or that it would have imposed concurrent sentences. A life term imposed for a rape committed during a burglary does not violate the state and federal proscriptions against cruel and unusual punishment. Appellant failed to establish that the sentence is so disproportionate to his crimes that it shocks the conscience or offends fundamental notions of human dignity. The phrase “during the commission of a burglary” included in Penal Code section 667.61, the “one strike” law, which mandates indeterminate life terms for those who commit, among other things, a rape in the commission of a burglary, encompasses the period of time that a burglar remains on the premises after entry, and continues until the burglar has reached a place of temporary safety. This “continuous-transaction” test is the appropriate measure of the duration of a burglary, and provides the broadest deterrent against the commission of sex crimes against burglary victims. The evidence here was therefore sufficient to support the conviction where the rape occurred after appellant had taken the money, but before appellant left the residence. The failure to instruct the jury on the meaning of the phrase “during the commission of a burglary” included in Penal Code section 667.61, the “one strike” law, was not error because it has no technical legal meaning. Jurors would naturally understand the phrase to include at least the time that a burglar remains inside the structure after entry. The trial court properly imposed punishment, without violating Penal Code section 654, for robbery and for the rape during the ongoing burglary and robbery because the rape and the robbery did not involve the same intent. Although the trial court gave no reasons to justify the imposition of a consecutive sentence, appellant failed to object and thereby waived the claim. The Court of Appeal here rejected appellant’s claim of a dual use violation, where the victim being over 65 years of age supported an enhancement imposed under Penal Code section 667.9, subdivision (a), and where the victim’s being 81 years and living alone supported imposition of the upper term for robbery. The trial court could properly have relied on the combination of age and living alone to find the victim particularly vulnerable. Moreover, the record reveals additional circumstances of vulnerability, including the time of the burglary, the size of the victim, and the fact that she did not speak English. Remand would therefore be unnecessary, even if reliance on the victim’s age was improper.