## Facts

- Salvador Carlos Reyes struck 74-year-old Wilfred Marsden on the head as Marsden unlocked his apartment building entrance, knocking him down.
- Reyes alternated between beating Marsden and searching his pockets, taking a change purse and a wallet containing $330.
- Marsden suffered head bruising, a cut nose requiring three stitches, and a facial cut requiring ten stitches; he spent about five hours at the hospital.
- Neighbor Dow Patten interrupted the attack; Reyes fled but was captured after a chase and turned over to police.
- Police observed Reyes smelled strongly of alcohol and appeared intoxicated, but he had motor control, spoke sensibly, and responded appropriately; his blood-alcohol level was 0.11%.
- The probation report stated Reyes admitted alcohol abuse, binge drinking, and blackouts, and had three prior DUI convictions.

## Issues

1. Whether the sentencing court erred by not treating Reyes’s alcoholism as a mitigating circumstance under the California Rules of Court.
2. Whether the court improperly imposed the upper term by relying on great-bodily-injury conduct after Reyes was acquitted of an enhancement allegation tied to injury to a victim 60 or older.
3. Whether giving CALJIC No. 2.21 (willfully false testimony on a material point) was reversible error.
4. Whether imposing a $300 restitution fine was erroneous.

## Decision

- The Court of Appeal affirmed the robbery conviction and all aspects of sentencing, including the five-year upper term and $300 restitution fine.
- The court held the trial court considered the alcoholism evidence but acted within its discretion in declining to treat it as mitigating.
- The court held the upper term was supported by aggravating circumstances shown by the record and was not an improper punishment for a rejected enhancement.
- The court found no reversible error in giving CALJIC No. 2.21 alongside standard reasonable-doubt and burden-of-proof instructions.
- The court upheld the restitution fine as authorized and not shown to be an abuse of discretion.

## Legal Principles

- Alcoholism is not automatically a mitigating circumstance; the sentencing court must consider whether it significantly reduced culpability and then weigh it with other factors.
- A sentencing court may select an upper term based on aggravating facts proved by the record (including seriousness of the attack and injuries) even if a related enhancement allegation is not found true, so long as the sentence is not imposed as punishment for the acquitted enhancement itself.
- CALJIC No. 2.21 is a generally permissible credibility instruction; its use is not reversible error absent a showing it misled the jury or undermined the prosecution’s burden of proof.
- A restitution fine within statutory limits will be upheld absent a specific showing of legal error or abuse of discretion.

## Conclusion

The court affirmed Reyes’s robbery conviction and upper-term sentence, holding that alcoholism required consideration but not mitigating weight, that the sentencing court could rely on proven aggravating circumstances despite an acquitted enhancement allegation, that CALJIC No. 2.21 was properly given, and that the $300 restitution fine was lawful.


People v. Reyes, 195 Cal. App. 3d 957 (Cal. Ct. App. 1987)