People v. Alvarez CA2/6 ( 2022 )

Filed 4/25/22 P. v. Alvarez CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B313110
(Super. Ct. No. 2020013105)
Plaintiff and Respondent, (Ventura County)
v.
ALAIN ALVAREZ,
Defendant and Appellant.
Alain Alvarez appeals the judgment entered after a jury
convicted him of inflicting corporal injury on a person with whom
he had a dating relationship (Pen. Code,1 § 273.5, subd. (a)). The
trial court granted appellant’s request to reduce the charge to a
misdemeanor and placed him on three years of probation with
terms and conditions including that he serve 90 days in county
jail. Appellant raises claims of evidentiary, prosecutorial, and
cumulative error. We affirm.
All statutory references are to the Penal Code unless
1
otherwise noted.
STATEMENT OF FACTS
Prosecution
Appellant and A.R. met in January 2020 and began dating.
In the early morning hours of May 6, 2020, Ventura County
Deputy Sheriff Conrad Meadows and his partner were dispatched
to appellant’s apartment regarding a noise complaint. The
deputies entered the apartment and saw appellant, his mother
Columba Ceja, and his sister L., who was 17 at the time of trial.
While searching the apartment for other people, Deputy
Meadows opened a downstairs bathroom door and saw A.R.
inside the bathroom. A.R. had bruises and scratch marks on her
chest, her nose was bleeding, and blood was on the bathroom
wall.
When asked about her injuries, A.R. said she had been
pushed into a wall as she and Ceja attempted to physically
restrain appellant, who was highly intoxicated, from leaving the
apartment. In phone calls appellant made to A.R. from jail after
his arrest, A.R. said “you kinda like uppercutted me” and “got my
fuckin’ nose and my lip.” At trial, A.R. testified that she and
appellant had been drinking on the night of the incident and that
her injuries were the result of a fall on the stairs outside
appellant’s apartment as she attempted to help appellant when
he stumbled. She denied that appellant had punched her and
claimed that her blood somehow ended up on the bathroom wall
while she was cleaning her face.
L. testified that she was sleeping upstairs when she heard
appellant arguing with A.R. and Ceja. L. went downstairs and
saw appellant moving toward the door as if he were about to
leave the apartment. L. persuaded appellant to stay and went
back upstairs. She subsequently heard a thump and went back
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downstairs after the deputies arrived. L. admitted telling one of
the deputies that she saw appellant punch A.R. in the face and
body and then follow her into the bathroom.2 L. claimed that she
had lied by saying what she thought the deputy wanted to hear.
Defense
Ceja testified that on the night of the incident she and A.R.
had worked together to calm appellant down and prevent him
from leaving the apartment. Ceja never saw appellant hit or act
aggressively toward A.R. that night and she had no idea how
A.R.’s blood ended up on the bathroom wall.
Miguel Angel Sanchez-Hernandez lived in appellant’s
apartment building when the incident took place. On the night of
May 5 Sanchez saw appellant and A.R. together outside on the
stairway, heard a scream, and then saw that A.R. had fallen.
When Sanchez approached appellant and A.R. and asked them if
everything was okay, they both said they had slipped on the
stairs and laughed. Sanchez did not see any bleeding or injury to
A.R.’s face.
DISCUSSION
A.R.’s Prior Inconsistent Statements
Appellant contends the trial court erred in denying his
request to exclude A.R.’s prior inconsistent statements under
Evidence Code section 1235. He asserts that the statements,
which were made during phone calls he had with A.R. while he
was in jail awaiting trial, should have been excluded as a
sanction for delayed discovery because they were not timely
produced to appellant in accordance with section 1054.7. We are
not persuaded.
2Bodycam footage of L.’s statements to the deputies at the
scene was played for the jury at trial.
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The prosecution must disclose to the defense any relevant
evidence “if it is in the possession of the prosecuting attorney or if
the prosecuting attorney knows it to be in the possession of the
investigating agencies.” (§ 1054.1.) Such evidence must be
produced at least 30 days prior to trial absent good cause for an
exception. (§ 1054.7.) If relevant evidence is not timely
produced, the trial court may impose any appropriate sanction
“including, but not limited to, immediate disclosure, contempt
proceedings, delaying or prohibiting the testimony of a witness or
the presentation of real evidence, continuance of the matter, or
any other lawful order. Further, the court may advise the jury of
any failure or refusal to disclose and of any untimely disclosure.”
(§ 1054.5, subd. (b).)
“Though a trial court has discretion in these matters, that
discretion is not unfettered. ‘The court may prohibit the
testimony of a witness pursuant to subdivision (b) only if all other
sanctions have been exhausted.’” (People v. Superior Court
(Mitchell) (2010) 184 Cal.App.4th 451, 459, quoting § 1054.5,
subd. (c).) This includes “testimony from the People’s witnesses
regarding discovery not previously provided.” (Ibid.) We review
the trial court’s rulings on this issue for an abuse of discretion.
(People v. Prince (2007) 40 Cal.4th 1179, 1232.)
After his arrest, appellant spent approximately one week in
custody. His trial commenced more than two months later. The
prosecutor first received the recordings of appellant and A.R.’s
three jailhouse calls less than a week prior to trial and
immediately produced them to the defense. In those calls, A.R. is
heard telling appellant “you kinda like uppercutted me” and “got
my fuckin’ nose and my lip.” The prosecutor explained that he
had not considered the possibility of recorded jailhouse calls until
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he discovered calls that had been made in a different case.
Realizing that appellant may have made calls because he was in
custody for more than one or two days, the prosecutor made a
request for the recordings of any such calls. The request was
made on September 21, 2020, the prosecutor received the
recordings on September 29, and produced them to the defense
the following day.
At the urging of the defense, the court indicated it would
exclude the evidence as a sanction for the discovery violation.
The court told the prosecutor, however, that “if you think that as
the trial progresses there’s some event, testimony or otherwise
that should cause the Court to re-examine that ruling, I’ll
certainly entertain it at that time.”
After A.R. testified that appellant had not hit her, the
prosecutor presented her with a transcribed copy of the phone
call to determine if it would refresh her recollection. When asked
whether she had told appellant that he “uppercut” her, A.R.
replied that she did not recall making the statement and
suggested she may have been referring to her fall down the
stairs. Following a hearing outside the jury’s presence, the court
determined that the portion of the call in which A.R. stated that
appellant had hit her should be admitted to impeach her
testimony at trial. The court made clear, however, that the
phone calls were otherwise still subject to exclusion as a sanction
for the discovery violation.
The court did not abuse its discretion. The statutory
scheme governing discovery in criminal cases is intended “[t]o
promote the ascertainment of truth in trials.” (§ 1054, subd. (a).)
This purpose would not be met if the prosecution was precluded
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from impeaching A.R. with prior statements that directly
contradicted what she testified to at trial.
Moreover, the exclusion of testimony is not a proper
sanction for a discovery violation “absent a showing of significant
prejudice and willful conduct motivated by a desire to obtain a
tactical advantage at trial. [Citation.]” (People v. Jordan (2003)
108 Cal.App.4th 349, 358.) Appellant makes neither showing
here. It is essentially undisputed that the discovery violation
was neither willful nor motivated by a desire to obtain a tactical
advantage. Contrary to appellant’s claim, the delayed discovery
of the phone calls did not amount to a violation of his
constitutional rights because the evidence was not favorable to
the defense. (People v. Ochoa (1998) 19 Cal.4th 353, 473.)
The defense also received the discovery a week before A.R.
testified, so it had ample opportunity to prepare for the
possibility that her prior statements would be admitted against
her for purposes of impeachment. (See People v. Verdugo (2010)
50 Cal.4th 263, 283 [defendant failed to demonstrate prejudice
where a witness’s prior oral statement regarding a threat were
disclosed to the defense “nearly [one] week” prior to the witness’s
testimony because “defense counsel had ample time to prepare a
cross-examination of [the witness] on this point” and “[d]efendant
does not state specifically what counsel would have done
differently if [the witness’s] oral statement had been disclosed
sooner”].) Moreover, A.R.’s trial testimony was inherently
incredible and her statements to appellant on the phone were
essentially corroborated by L.’s statements to the deputies.
Because it is not reasonably probable that appellant would have
achieved a more favorable result had the challenged evidence
been excluded, his claim fails for lack of prejudice. (People v.
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Watson (1956) 46 Cal.2d 818, 836; Verdugo, at p. 280 [applying
Watson harmless error standard to discovery violation under
§ 1054.1].)
Prosecutorial Misconduct
Appellant contends the prosecutor committed misconduct,
in violation of his constitutional rights, by disparaging defense
counsel during closing argument. We disagree.
A claim of prosecutorial misconduct is governed by the
abuse of discretion standard of review. (People v. Alvarez (1996)
14 Cal.4th 155, 213.) “‘“A prosecutor commits misconduct if he or
she attacks the integrity of defense counsel, or casts aspersions
on defense counsel.” [Citations.] “In evaluating a claim of such
misconduct, we determine whether the prosecutor’s comments
were a fair response to defense counsel’s remarks” [citation], and
whether there is a reasonable likelihood the jury construed the
remarks in an objectionable fashion [citation].’ [Citation.] ‘To
prevail on a claim of prosecutorial misconduct based on remarks
to the jury, the defendant must show a reasonable likelihood the
jury understood or applied the complained-of comments in an
improper or erroneous manner. [Citations.] In conducting this
inquiry, we “do not lightly infer” that the jury drew the most
damaging rather than the least damaging meaning from the
prosecutor’s statements.’” (People v. Seumanu (2015) 61 Cal.4th
1293, 1336-1337.)
“[T]o preserve a claim of prosecutorial misconduct for
appeal, ‘“‘a criminal defendant must make a timely and specific
objection and ask the trial court to admonish the jury to
disregard the impropriety.’” [Citation.] The lack of a timely
objection and request for admonition will be excused only if either
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would have been futile or if an admonition would not have cured
the harm.’” (People v. Hoyt (2020) 8 Cal.5th 892, 942–943.)
In his closing argument, the prosecutor discussed how L.’s
trial testimony differed from what she told the deputies at the
scene and asked the jury to compare her demeanor in the
bodycam video to her demeanor on the stand. After referring to
L.’s testimony that she met with defense counsel prior to her
testimony, the prosecutor stated: “We don’t know what they
talked about. But she said they talked for at least 20 minutes.
Can you imagine the stress that girl went through when she has
to walk back that statement?” Defense counsel objected to the
remark as “[i]mpugning the integrity of defense counsel” but did
not request an admonition. After the court overruled the
objection, the prosecutor added: “I don’t know what [defense
counsel] talked to [L.] about, but [L.] had to walk back—she had
to explain why . . . what she told the officer . . . was a lie.”
In addressing the issue in her closing argument, defense
counsel characterized the prosecutor’s comments as
“unprofessional and really kind of desperate” and added that “for
[him] to say that me preparing and interviewing witnesses is
unethical or for him to insinuate that is offensive.” On rebuttal,
the prosecutor made clear to the jury that he “did not say
[defense counsel] did anything unethical” and added “[the]
defense has no obligation to produce any evidence, but they did.
You heard from [Ceja]. You heard from [Sanchez]. But we didn’t
hear the conversation they had with [L.]”
Appellant fails to demonstrate that the prosecutor
committed misconduct, much less that the error was prejudicial.
He only raised an objection to the prosecutor’s first comment and
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did not request any admonitions, so his claim is forfeited. (People
v. Hoyt, supra, 8 Cal.5th at pp. 942–943.)
In any event, the challenged remarks did not amount to
misconduct. “‘Prosecutors may attack the defense case and
argument. “Doing so is proper and is, indeed, the essence of
advocacy.”’” (People v. Krebs (2019) 8 Cal.5th 265, 342.) Even if
the prosecutor’s comments could be fairly characterized as
disparaging, they were less so than those the California Supreme
Court has previously upheld. (See, e.g., People v. Stanley (2006)
39 Cal.4th 913, 952 [no misconduct where prosecutor argued
counsel “‘imagined things that go beyond the evidence,’” was on
an “‘imaginary trip,’” and told the jury a “‘bald-faced lie’”]; People
v. Medina (1995) 11 Cal.4th 694, 759 [no misconduct where
prosecutor said counsel can “‘twist [and] poke [and] try to draw
some speculation, try to get you to buy something’”]; People v.
Gionis (1995) 9 Cal.4th 1196, 1215-1216 [prosecutor argued that
defense counsel was talking out of both sides of his mouth];
People v. Bell (1989) 49 Cal.3d 502, 538 [prosecutor argued that
defense counsel’s job is to “‘confuse’” jurors and “‘throw sand’” in
their eyes and that counsel “‘does a good job of it’”].)
Moreover, the prosecutor made clear that the jury should
not construe his remarks as disparaging defense counsel and
appellant offers nothing to indicate that the jury “‘drew the most
damaging rather than the least damaging meaning from the
prosecutor’s statements.’” (People v. Seumanu, supra, 61 Cal.4th
at pp. 1336-1337.) In addition, L.’s statements that she saw
appellant hit A.R. were corroborated by A.R.’s statements to
appellant and L.’s attempts at trial to retract her prior
statements were not persuasive. Given the strong evidence of
appellant’s guilt, any error arising from the prosecutor’s
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challenged comments was harmless regardless of the standard of
review.
Cumulative Error
Appellant contends that the cumulative effect of the alleged
errors compels reversal of the judgment. Because we reject each
assignment of error, appellant’s claim of cumulative error
necessarily fails. (People v. Avila (2006) 38 Cal.4th 491, 608.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
PERREN, J.
We concur:
GILBERT, P. J.
YEGAN, J.
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David R. Worley, Judge
Superior Court County of Ventura
______________________________
Mi Kim, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Zee Rodriguez, Supervising Deputy
Attorney General, and Michael C. Keller, Deputy Attorney
General, for Plaintiff and Respondent.
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