P. v. Alatorre
A jury convicted Alberto Alatorre, Jr., of five counts of robbery under Penal Code section 211 (all undesignated statutory references are also to the Penal Code) and found true the allegation that he personally used a firearm (§ 12022.53, subd. (b)) as to counts 1, 4 and 5.
The court sentenced Alatorre to an aggregate prison term of 20 years 4 months. The court imposed the upper term of five years on count 1, and one year, or one-third the middle term, on counts 2 and 4, to be served consecutively. The court imposed the middle term of three years on counts 3 and 5, to be served concurrently. As for the three firearm enhancements found true, the court imposed the upper term of 10 years on count 1, and three years four months, one-third the middle term, on count 4. On the count 5 enhancement, the court imposed the upper term of 10 years to be served concurrently.
On appeal, Alatorre asserts (1) the prosecutor committed prejudicial misconduct during closing argument by exploiting the lack of evidence of motive that the prosecutor successfully moved to exclude before trial; (2) the court erred when, at the prosecution's request, it modified the jury instruction on personal use of a firearm; (3) the court erred when it failed to sua sponte instruct on the lesser enhancement of being armed with a firearm; and (4) the court erred in sentencing Alatorre to the upper term on count 1. We affirm.
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