People v. Alvarado CA2/7 ( 2021 )

Filed 6/14/21 P. v. Alvarado CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B289898
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA439926)
v.
SAULO ALVARADO,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Kathleen Kennedy, Judge. Affirmed.
Allen G. Weinberg, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Noah P. Hill and Steven E. Mercer,
Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
A jury convicted Saulo Alvarado in 2018 of murdering his
father, stepmother, and two half-brothers in 1999, and sexually
abusing his half-sister. Alvarado contends the trial court erred by
excluding evidence of one victim’s alleged gang membership and
by admitting evidence of an uncharged sexual offense. Alvarado
also argues several statutes and pattern jury instructions are
unconstitutional. Alvarado last asserts that a $10,000 restitution
fine and a $200 sex offender fine should be stricken or stayed
unless and until the People prove Alvarado’s ability to pay them.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Amended Information
The amended information charged Alvarado with four
counts of first degree murder (Pen. Code,1 § 187, subd. (a));
counts 1, 2, 3 and 4); one count of forcible lewd act upon a child
under 14 years old (§ 288, subd. (b)(1); count 5); and one count of
lewd act upon a child under 14 years old (§ 288, subd. (a); count 6).
The information alleged as to counts 1 through 4 that the crimes
were a multiple-murder special circumstance (§ 190.2,
subd. (a)(3)), and as to counts 3 and 4 that Alvarado intentionally
killed the victims by means of lying in wait (§ 190.2, subd. (a)(15)).
The information alleged as to counts 1 through 4 that Alvarado
personally and intentionally discharged a firearm which
proximately caused great bodily injury or death (§ 12022.53,
subd. (d)), personally and intentionally discharged a firearm
1 Unless otherwise designated all further statutory references
are to the Penal Code.
2
(§ 12022.53, subd. (c)), and personally used a firearm (§ 12022.53,
subd. (b)). Alvarado pleaded not guilty and denied the special
allegations.
B. The Evidence at Trial
1. The crimes
a. Late 1998 and early 1999
In 1998 and 1999 Rodolfo Alvarado and his wife Eva
(“Veronica”) Alvarado lived in a three-bedroom, second-story
apartment in South Los Angeles with their 16-year-old son
Lorenzo (“Renzo”), their 10-year-old daughter Ashley Melissa, and
their four-year-old son Victor.2 Alvarado was Rodolfo’s son from a
previous relationship. Alvarado, who was 16 years old, moved into
the apartment in the fall of 1998 and attended Crenshaw High
School. Alvarado shared a bedroom with his half-brother Renzo.
Ashley testified3 that in late 1998 or early 1999, as she and a
friend played a computer game in one of the bedrooms, Alvarado
grabbed Ashley’s right hand and placed it against his penis.
Ashley felt something “warm” and “wet” on her hand. When
Ashley looked at Alvarado, he covered his genitals with his hands
and laughed. Ashley, who was 10 years old, did not understand
what the substance was, but she was “grossed out” and left the
room to wash her hands.
On another occasion Alvarado hit Ashley “really hard” with
a belt on her legs, leaving a bruise. On a different day Alvarado
2 For clarity we refer to Rodolfo Alvarado, Veronica Alvarado,
Renzo Alvarado, Ashley Alvarado, and Victor Alvarado by their
first names.
3 Ashley was 29 years old when she testified at the trial.
3
choked Ashley with both hands until she began to lose
consciousness. Ashley’s best friend Erica Reddish, who was nine
years old in 1999, was present. Reddish saw the color in Ashley’s
face change as Alvarado choked her. Another time Reddish saw
Alvarado cover Ashley’s mouth with his hand until Ashley could
not breathe. Both times Reddish told Alvarado to stop and tried to
pull his hands away from Ashley’s face.
Sometime in March 1999, Ashley told Veronica that
Alvarado had hit and choked her. Veronica was “in shock”; she
confronted Alvarado and told him he was not permitted to hit
Ashley.
Around the same time, Ashley saw Alvarado and Rodolfo
arguing in the apartment. Alvarado choked Rodolfo, who tried to
push Alvarado away. Alvarado looked “aggressive,” and Rodolfo
was “pushing off [Alvarado] while [Alvarado] was choking him.”
Ashley yelled at them to stop. Alvarado stopped choking Rodolfo
and walked out.
b. April 26 and 27, 1999
On the morning of April 26, 1999, Rodolfo drove Veronica,
Alvarado, Ashley, and Victor to a health clinic for school
vaccinations. Renzo was at school at Los Angeles High School.
Following the vaccinations, Veronica, Alvarado, Ashley, and Victor
took the bus to Los Angeles High School to see Renzo, who was
getting out of school. After Veronica spoke with Renzo, Veronica,
Alvarado, Ashley, and Victor took a taxi home. Victor went
outside to play, and Ashley called a friend to come and play
outside. Veronica sat in the dining room facing the window.
Alvarado entered the dining room with a gun in his hand.
As Veronica looked out the window, Alvarado shot her in the back
of her head. Ashley, who was still speaking to her friend on the
4
telephone, was shocked. Veronica fell to the ground and made a
gurgling noise. Ashley walked to Veronica, and Alvarado took the
telephone from her hand and hung it up. Ashley threw some cups
on the floor in an effort to compel Veronica to react, but Veronica
did not respond.
A few minutes later Victor came back inside with a toy in his
hand and ran into his bedroom. Alvarado told Ashley to follow
Victor into the same bedroom. Alvarado pointed the gun at
Victor’s face; Victor swatted it away. Alvarado again pointed the
gun at Victor and shot him in the face from about three feet away.
Victor fell to the ground.
After Alvarado shot Victor, Ashley was in shock and
“couldn’t really comprehend anything anymore.” Alvarado told
Ashley to get on the bed. Alvarado pulled down Ashley’s pants
and underwear and pinned her arms above her head. Alvarado
took out his penis and rubbed it against Ashley’s vagina and body.
Ashley kicked and screamed for Alvarado to stop. Ashley felt
“helpless and scared.” After about five minutes, Alvarado stopped
and got dressed.
Ashley dressed and walked to her parents’ bedroom.
Alvarado followed her. Alvarado made statements about the grim
reaper, and that he disliked that Ashley’s family had his father
but Alvarado did not. Alvarado went to the closet in Renzo’s
bedroom and retrieved an ashtray with a grim reaper design on it.
Alvarado told Ashley the ashtray gave bad luck and would possess
anyone who put ashes in it. Alvarado also told Ashley that when
he lived with his grandmother in Guatemala, he had seen the devil
in the hallway of her house.
Alvarado put the gun on the bed in Renzo’s room; Ashley
picked it up and pointed it at Alvarado. Alvarado laughed. He
told Ashley the safety was on, and he took the gun from her.
5
Ashley went to her parents’ bedroom. She was in shock and
scared. Ashley cried herself to sleep.
When she woke up, it was dark outside and the apartment
lights were off, but light was coming in through the windows.
Ashley estimated it was 10:00 p.m. or 11:00 p.m. Ashley found
Alvarado in Renzo’s bedroom, looking out a window. Ashley
walked over to see what Alvarado was looking at. As Ashley
looked out the window, Renzo arrived home, entered the bedroom,
and asked Ashley what she was doing. Ashley turned to face
Renzo, and saw that Alvarado had moved behind the bedroom
door. Alvarado raised the gun and shot Renzo in the face from
three to four feet away. Renzo fell to the ground, and Alvarado left
the room.
Minutes later Rodolfo appeared at the bedroom door.
Alvarado shot Rodolfo and he fell to the ground. Rodolfo began
crawling down the hallway. Alvarado walked to Rodolfo, looked at
him for a few seconds, and shot him again. Ashley returned to her
parents’ bedroom and cried herself to sleep again.
Ashley was awakened between 6:00 a.m. and 7:30 a.m. the
next morning by the sound of her neighbor Graciela Reyes
knocking on the front door. Reyes was Veronica’s coworker, and
each morning Reyes and Veronica would leave for work together.
Ashley walked to the living room; Alvarado stood next to her.
Alvarado gestured for Ashley to remain quiet. Ashley was
“terrified.” Reyes knocked for a minute or so and then left for
work. Alvarado told Ashley to put on her shoes, and he retrieved
the car keys from Rodolfo’s body.4
4 Ashley testified her family had one car, which Rodolfo drove,
and that Rodolfo never let Alvarado borrow or drive the car.
6
Alvarado drove Ashley in Rodolfo’s car down the street,
where he picked up a friend Ashley did not know and had never
seen before. Ashley described the friend, who was later identified
as Marvin Escobar, as male, Hispanic, and about Alvarado’s age.
Escobar got into the front passenger seat, and Alvarado drove to a
gas station. Alvarado and Escobar got out of the car and spoke to
each other; Escobar returned to the car and asked Ashley if it was
true Alvarado had killed his family. Ashley replied, “Yes.”
Alvarado dropped Escobar at his house and returned with Ashley
to the apartment. Ashley estimated she and Alvarado had been
away from the apartment for 15 or 20 minutes.
When Alvarado and Ashley were back inside the apartment,
Ashley was “very distraught.” Alvarado told Ashley to call 911
and to ask for someone who spoke Spanish. Ashley called 911
from the living room at 9:01 a.m. During the call, Ashley saw
Alvarado wiping the gun with a rag and walking towards Renzo’s
bedroom. Alvarado then took the telephone from Ashley to speak
to the 911 operator. Ashley went to Renzo’s bedroom and saw that
Alvarado had placed the gun in Renzo’s hand. She also saw that a
candle had been placed near Renzo’s body.
Alvarado and Ashley went outside to wait for the police.
Alvarado told Ashley to tell the police he had been taking her to
school but she had forgotten her backpack, and when they
returned to the apartment to retrieve the backpack they had
discovered the bodies. Alvarado told Ashley he would kill her if
she refused.
Police officers, including Los Angeles Police Officer Jay
Nam, arrived at the apartment at 9:05 a.m. The door was ajar;
once it was opened, Officer Nam immediately smelled natural gas
and saw Rodolfo’s body lying in the hallway. Officer Nam entered
the apartment and found the other three bodies.
7
2. The 1999 investigation
a. The crime scene
Homicide detectives arrived at the apartment at 10:05 a.m.
Rodolfo’s body was covered by a blanket. Veronica’s body was face
up on the floor of the parents’ bedroom. The body had been draped
with a blanket and there was a pillow under her head. Veronica’s
body had livor mortis discoloration (discoloration from blood
pooling in the tissue) on her right knee, which was inconsistent
with the position of her body, indicating that someone had moved
her body after her death. Victor’s body was lying on its side,
partially covered by a blanket, with a toy near his left hand. Livor
mortis discoloration indicated Victor’s body had been moved after
death. Victor’s face showed discoloration that indicated the body
had been face down at some point.
Renzo’s body was face up on the floor of his bedroom. A six-
shot .22-caliber revolver with five expended shell casings and one
live round was in Renzo’s hand. The serial number on the gun had
been scratched out, and “AK” had been etched on the frame. Police
found a box of ammunition in Renzo’s jacket pocket, and additional
.22-caliber rounds and spent casings in the apartment. A red
candle with a recently-lit wick was on the floor near Renzo’s body.
b. Initial police interviews
Police brought Ashley and Alvarado to the police station at
10:30 a.m. The homicide detectives believed they were surviving
family members and did not consider them suspects. Detectives
interviewed Ashley for 10 or 15 minutes. Ashley was “very upset,”
crying, and reserved. The detective did not want “to push her,”
and the interview was not recorded. Afraid of Alvarado, Ashley
repeated the story he had instructed her to tell.
8
Detectives interviewed Alvarado for approximately
30 minutes. His interview was recorded and played for the jury.
Alvarado told Detective Terrence Fathauer that earlier that
morning he took Ashley to school and picked up his friends Marvin
Escobar and Marvin Estrada. Alvarado said he had left his
backpack at home, so he and Ashley returned to the apartment.
Alvarado said he immediately smelled gas, and turned off four gas
burners on the stove. He said he heard a “gurgling” sound from
Rodolfo, and he checked Rodolfo for a pulse. Alvarado told
Detective Fathauer he then discovered the other bodies.
At a second interview two weeks later, Alvarado denied
moving Victor’s body. Alvarado said he had blown out the candle
next to Renzo’s body. Alvarado gave the detectives a drawing he
had made that showed four graves for his family members, along
with his name and jail cell bars. Alvarado claimed to have fired
the gun the afternoon before the murders, and said that Renzo
fired the gun “almost daily” from the window of his bedroom.
Ashley’s uncle (Veronica’s brother) and his wife picked up
Ashley from the police station on April 27, 1999 and took her to
their house. Officers asked if they would take Alvarado too, but
Ashley told her uncle and a detective she did not want Alvarado
near her. Because Alvarado did not have any family member to
take custody of him, the police placed him with the Department of
Children and Family Services.
A few days later Ashley and Alvarado attended a joint
funeral for the family. Reddish saw Alvarado at the funeral
“sweating and look[ing] stressed out.” Reddish testified Alvarado
“looked like he was shaking and there were gangbangers there
threatening to kill the person who did it.” Alvarado approached
Ashley at the funeral, but she was “terrified of him” and got up
and left. Ashley did not see or speak to Alvarado again.
9
c. The medical examiners’ conclusions
Medical examiners testified about the results of the
autopsies performed in 1999. Rodolfo had two fatal gunshot
wounds to the left side of his head and one grazing gunshot wound
to the left chin. Victor was killed by a single gunshot to the right
temple that had been fired while the gun muzzle was pressed
against his skin.
Veronica was killed by a single gunshot to the back of her
head. The decomposition of Veronica’s blood and organs was
consistent with Veronica having been dead for approximately a
day before her body was placed in cold storage at the coroner’s
office on April 27, 1999.
Renzo was killed by a single gunshot to the forehead that
had been fired from a distance of six to 24 inches. Dr. Ogbonna
Chinwah, the medical examiner who performed Renzo’s autopsy,
concluded Renzo had committed suicide. Dr. Chinwah testified
Renzo’s autopsy “was given to me just to—just quickly get it out of
the way.” He testified Renzo’s autopsy “was assigned to me by the
supervisor. The supervisor concluded it was a suicide and gave it
to me as a suicide. And I just went over it and moved the thing
away . . . . And so that’s how that case went.”
d. Police deem the case a murder-suicide
perpetrated by Renzo
On April 29, 1999, Detective Debra Winter, the senior
detective on the case, opined the crime was a murder-suicide
perpetrated by Renzo. Detective Winter based her conclusion on
the statements police had taken from Alvarado and Ashley and on
finding the gun in Renzo’s hand. Detective Winter had not
reviewed the 911 call and had not obtained the results of gunshot
residue analysis of Renzo’s hands.
10
Gunshot residue tests were performed in May 1999. Renzo
did not have gunshot residue on either hand. Rodolfo had gunshot
residue on his hands consistent with having fired a gun, having
touched a surface that had gunshot residue on it, or having been
shot. When the police received the results of the gunshot residue
tests, Detective Winter had already closed the case, having
concluded Renzo had killed his family and himself.
Ballistics testing showed the bullets recovered from the
bodies had been fired from a .22-caliber gun. The bullet recovered
from Renzo’s body had been fired from the gun found in his hand;
the other bullets were too deformed to determine conclusively
whether they had been fired from that gun.
Detective Fathauer reviewed the transcript of the 911 call
one-and-a-half weeks after the murders. The recording of the 911
call was played for the jury. Detective Fathauer testified
Alvarado’s statements on the call made him somewhat suspicious
because, unlike a typical caller in similar circumstances, Alvarado
offered extraneous information unrelated to the discovery of his
family’s bodies. Detective Fathauer also noted Alvarado did not
mention the smell of gas.
3. The 2012 investigation
a. Ashley comes forward
Ashley did not speak about the murders for 13 years. When
she started junior high school, her uncle told her to “bury it” and
not to talk about it. During those years, Ashley was afraid of
Alvarado, did not want to be accused of lying, and did not believe
she could cope with revealing the truth. When family members
asked Ashley about the murders, or suggested she see a therapist,
she responded she did not want to discuss it.
11
In 2012, when Ashley was 23 or 24 years old, she was “very
depressed” because “of the secret that [she] had to hold for so
long.” She “didn’t know how to deal with it anymore.” After
taking an Ecstasy pill, drinking alcohol, and smoking marijuana,
Ashley told her roommate Silvia Sikaffy “everything” about what
Alvarado had done, “step-by-step.” Sikaffy told Ashley to report
the crimes to the police, but Ashley was afraid of Alvarado and did
not know if she “was even going to be able to handle going through
it.”
On October 10, 2012, a month or two after speaking to
Sikaffy, Ashley went with a friend to the 77th Division police
station and spoke with Detective Mark Hahn. Ashley told
Detective Hahn she had witnessed Alvarado murder her family,
and Alvarado had “pinned” the blame on Renzo. Ashley testified
she came forward because “[her] brother Renzo needed justice,”
and “we needed to clean [sic] our name.”
After Detective Hahn interviewed Ashley, he requested DNA
testing of a swab taken from blood in the dining room. The DNA
profile matched Veronica’s DNA profile, which verified Ashley’s
statement that Veronica had been shot in the dining room.
Detective Hahn interviewed Ashley again on October 24,
2012 and June 12, 2013. Ashley answered questions about the
murders, and she described the incidents in which Alvarado
choked her and put her hand against his penis after ejaculating.
Ashley’s October 10 and 24, 2012 police interviews were recorded
and played for the jury.5
5 Following the 2012 investigation, Alvarado was arrested in
Guatemala and extradited to the United States. Detective Hahn
interviewed Alvarado in custody; the interview was recorded and
played for the jury.
12
b. The medical examiner concludes Renzo was
murdered
In 2013 Dr. Chinwah reviewed his 1999 autopsy of Renzo’s
body and concluded Renzo’s death was a homicide. Dr. Chinwah
testified that he changed the manner of death from suicide to
homicide because the coroner’s office “received additional
information from the police department . . . that someone who did
the killing wiped the gun off, wiped it and then placed it in the
hand of [Renzo].” In addition, in 2013 Dr. Chinwah had the
results of the 1999 gunshot residue tests that showed no gunshot
residue on Renzo’s hands. Dr. Chinwah had closed the case in
April 1999 without receiving the results of the gunshot residue
tests.
4. Witness testimony
a. Prosecution witnesses
i. Marvin Escobar
Marvin Escobar was 16 years old in 1999 and Alvarado’s
“close friend.”6 Escobar lived down the street from the Alvarados.
Once when Escobar was at the Alvarados’ apartment, Alvarado
and Renzo showed him a gun.
Around 7:20 a.m. on the morning after the murders,
Alvarado and Ashley arrived in Rodolfo’s car to pick up Escobar.
Escobar asked Alvarado why he was driving Rodolfo’s car because
Rodolfo did not permit him to drive it. Alvarado seemed nervous
6 Escobar was deported to El Salvador in 2017. He was flown
to the United States for Alvarado’s trial and was in custody when
he testified. Escobar stated he was not testifying in exchange for
any “offers or deals.”
13
and did not respond. Escobar “kept asking [Alvarado] what was
going on”; Alvarado said he had killed his parents.
Alvarado stopped at a gas station to buy rolling papers so he
and Escobar could smoke marijuana. Alvarado then drove toward
Crenshaw High School. Escobar told Alvarado he wanted to “find
out if it was true” that Alvarado had killed his parents, so
Alvarado drove Escobar and Ashley back to the apartment.
Escobar and Alvarado left Ashley in the car and went
upstairs to the apartment. As Alvarado opened the door, Escobar
saw Rodolfo’s body in the hallway. Escobar jumped over Rodolfo’s
body and found Renzo’s body. Escobar saw a lighted candle near
Renzo’s body and a gun in Renzo’s hand. Alvarado told Escobar he
had turned the stove on; Escobar, fearing an explosion, told
Alvarado to turn it off. Escobar told Alvarado he was leaving and
that Alvarado should call the police.
Escobar went to school, returned home that afternoon, and
went to a park. Police arrested Escobar that afternoon for a
probation violation. Escobar did not tell the police about the
murders. During a 2012 police interview, Escobar lied to the
police and did not tell them about the murders because Escobar
was in the country illegally and was afraid he would be taken into
immigration custody. During a subsequent police interview in
2013, Escobar told the police Alvarado had confessed to the
murders and Escobar had seen the bodies.
Escobar did not see Alvarado for about a year after the
murders, when Alvarado arrived at Escobar’s house with some
friends. Alvarado told Escobar he could no longer smoke
marijuana because his conscience was bothering him.
14
ii. Monica Becerra
Monica Becerra was Alvarado’s girlfriend in 2003, when she
was 19 years old. Becerra testified that when she and Alvarado
lived together in 2003 Alvarado told her he had murdered his
family and “made it seem like” Renzo was the killer. Alvarado told
Becerra his mother had told him how to commit the murders, he
had been hearing voices, and a dragon statue had been telling him
what to do. Alvarado’s mother was present one of the times
Alvarado confessed to Becerra; she told Becerra, “Oh, don’t listen
to him. He’s crazy.” Alvarado told Becerra he would get away
with the murders “because he will come out of there like crazy.”
iii. Lee Jarmon
Lee Jarmon was Renzo’s best friend, and he lived with the
Alvarados for a few months in 1998 and 1999 when he was
18 years old. Jarmon moved out a few weeks before the murders.
Jarmon told detectives Renzo had a gun, and that Jarmon had
seen both Alvarado and Renzo with a gun in the apartment.
Jarmon and Renzo had made plans to meet the morning the
bodies were discovered. Jarmon drove to Renzo’s apartment and
saw Alvarado, Ashley, and Escobar in Escobar’s front yard.
Rodolfo’s car was parked in front of Escobar’s house. Jarmon
rolled down his window and asked Ashley, “Why aren’t you in
school?” Ashley appeared “real nervous” and “scared.” Jarmon
had never before seen Alvarado driving Rodolfo’s car, and he had
never seen Alvarado alone with Ashley on the street. Jarmon
asked Alvarado why he had Rodolfo’s car; Alvarado responded
“Atlanta, Georgia.” Jarmon said, “Bullshit. They didn’t say they
were going to Atlanta, Georgia.”
Jarmon pulled into the back of the apartment complex and
blasted his car stereo to get Renzo’s attention, but Renzo did not
15
come to the window as he usually did. Jarmon ran upstairs and
banged on the apartment door. After about 15 minutes Jarmon
drove away; Alvarado, Ashley, and Escobar were still outside.7
iv. Jazmin Nunez
Jazmin Nunez was 15 years old in 1999. She met Alvarado
at Crenshaw High School, and they began dating. Alvarado told
Nunez he loved his sister Ashley very much, but he hated his
father because his father had left him in Guatemala.
Nunez testified that Alvarado was “very kind, very nice” at
the beginning of their relationship, but later “he turned into
someone else” and “became violent.” One day at school Alvarado
became angry when Nunez hugged a male friend. Alvarado pulled
Nunez by the wrist and called her a “bitch” and “his property,” and
said Nunez needed to respect him.
Later that day, Alvarado and Nunez went to the Alvarados’
apartment, which was empty. Alvarado yelled at Nunez and
pushed her onto the parents’ bed. Alvarado turned Nunez over,
pinned her hands above her head, pulled her pants down, and
forcibly raped her while she was face down. Nunez struggled and
screamed for Alvarado to stop and that he was hurting her. When
Alvarado finished, he “got up like nothing” and took a shower.
Nunez walked home. A few days later, Nunez went back to the
apartment to ask Alvarado, “[W]hy did he rape me?” Another girl
answered the door. Nunez left crying.
7 Detective Winter testified Jarmon said during a police
interview that he went to the apartment before he saw Alvarado,
Ashley, and Escobar that day. Detective Winter also testified
Jarmon identified Escobar as “Merlin.”
16
At school after the murders, Escobar told Nunez that
Alvarado had confessed to killing his family. Nunez told her
parents, who told her to not to speak to the police because they
were immigrants and did not “want to get in trouble.” Nunez’s
mother also said that if Alvarado had killed his family, he might
also kill Nunez if she “snitch[ed].” Alvarado called Nunez and
invited her to the family funeral, but her mother would not permit
her to attend. During the call, Nunez asked Alvarado, “Did you
kill your family?” Alvarado did not answer, and after a moment of
silence, Alvarado hung up.
v. Yessika Diaz
Escobar told his neighbor Yessika Diaz, who was 14 or
15 years old in 1999, that Alvarado had confessed to the murders.
Diaz told her friend Cindy Rivera. Diaz did not tell the police
because Escobar had told her not to say anything, and because
“back then [Diaz] was small and [she] was scared.”
Two or three weeks before the murders, Diaz was at the
Alvarados’ apartment with Alvarado, Renzo, Escobar, and another
girl. Alvarado “pulled out a gun” and “shot out the window.” Diaz
was “scared” and thought Alvarado “was out of his mind.”
vi. Alice Hargrave
Alice Hargrave was approximately 15 years old in 1999, and
lived in the apartment directly above the Alvarados. Hargrave
knew the family well and would occasionally babysit Victor. Renzo
was “very protective” of Ashley and Victor.
On or about January 22, 1999 Alvarado came to Hargrave’s
apartment complaining of a headache. Hargrave gave him a bottle
of aspirin. Later that night or the next night, paramedics
responded to a 911 call that Alvarado had overdosed on Tylenol.
17
Alvarado told paramedics he had taken four Tylenol PM tablets “to
kill himself.”8 As paramedics carried Alvarado out of the
apartment complex on a stretcher, Hargrave heard Alvarado
crying and saying, “They don’t love me. My brothers don’t love
me. . . . [T]hey only take up for my sister and brothers.”9
Hargrave testified Alvarado and Renzo showed her a gun in
Renzo’s bedroom before the murders. She also testified that on the
morning the bodies were discovered she heard Victor having a
tantrum, that he suddenly stopped, and that she heard loud music
after Victor stopped crying. Hargrave attended the family funeral;
she saw Alvarado approach Ashley, who “retreated and left.”
vii. Cindy Rivera
Cindy Rivera was 15 or 16 years old in 1999. She knew
Alvarado and Escobar. A week or two before the murders, Rivera
was at the Alvarados’ apartment with Alvarado, Renzo, Diaz, and
another girl. Alvarado “took out a gun” and “start[ed] firing
outside the window.” Rivera was “scared” and thought Alvarado
was “going crazy” and “was going to do something to [them].”
viii. Graciela Reyes
In addition to her testimony about knocking on the
Alvarados’ door on April 27, Graciela Reyes also told detectives
that a week or so before the murders Alvarado and Renzo had a
fight. Veronica slapped Alvarado in an effort to separate Alvarado
and Renzo. Veronica told Reyes that after she slapped Alvarado,
8 Ashley testified Alvarado once told her he wanted to kill
himself.
9 Hargrave’s sister Anita Hargrave testified she heard
Alvarado complain Rodolfo treated him differently than the other
siblings.
18
he “looked at her in a very mean way” and his eyes “turned like
those of a monster.” Alvarado was “very angry,” and he told
Veronica no “old lady” had ever touched him. Reyes also testified
Renzo “got along well” with Veronica, and “adored” Victor.
ix. Expert testimony
Wilson Hayes testified as an expert in injury biomechanics.
Hayes opined the likelihood that Renzo committed suicide was
“extremely low.” He also opined that, in light of the gunshot to
Renzo’s brain, it was “extremely unlikely” that as Renzo fell to the
ground he would have been able to maintain his grasp on the gun
and his finger on the trigger. In addition, if Renzo had fired the
gun five or six times, there was an “extremely low probability” he
would not have any gunshot residue on his hands. Hayes further
concluded that when the gun was fired, the muzzle was six to
24 inches from Renzo’s head, and that the bullet trajectory made it
“physically impossible” for Renzo to have fired the shot.
Mindy Mechanic, a psychologist, testified that most
incidents of sexual violence against children are neither reported
nor acknowledged, but that even individuals who acknowledge
they have been sexually abused do not report or disclose the abuse,
especially during childhood. Mechanic testified that between
55 and 75 percent of people sexually abused as children disclose
the abuse for the first time as adults.
b. Defense witnesses
i. Marvin Estrada
Marvin Estrada and Escobar were close friends and
attended Crenshaw High School with Alvarado. On the morning
the bodies were discovered, Estrada went to Escobar’s house to
walk to school with him. Alvarado was there with Ashley in a
19
four-door car; Ashley “looked like she was sick, or something was
wrong with her.” Alvarado drove Estrada and Escobar to school
and dropped them off. A few days after the murders Escobar told
Estrada and two other people that Alvarado had killed his family.
ii. Linda Jarmon
Lee Jarmon’s mother, Linda, lived across the street from the
Alvarados in 1999. On the morning the bodies were discovered,
she heard gunshots “early that morning,” but could not determine
where they had come from.
iii. Willette Huntley
Willette Huntley lived across the street from the Alvarados
in 1999 and knew Renzo. About eight months before the murders,
Renzo came to Huntley’s house crying and with a black eye. Renzo
said his grandfather and father were hitting him. On another
occasion, Renzo said he wanted to kill his father and protect his
family from his father.
Huntley heard gunshots the morning the bodies were
discovered, but she did not know where they had come from.
Huntley told a detective in 2012 she heard the gunshots coming
from Renzo’s apartment and the apartment door was ajar.10
iv. Lucila Reyes
Lucila Reyes lived on the third floor of the Alvarados’
apartment complex in 1999. She knew the Alvarado family
10 Los Angeles Police Officer Owen Mills testified he
interviewed Huntley at approximately 9:50 a.m. on April 27, 1999.
Officer Mills asked Huntley if she had heard any gunshots;
Huntley said no. Huntley did not tell Officer Mills Renzo said he
wanted to kill his father.
20
because her mother Graciela Reyes worked with Veronica. Lucila
Reyes last saw Veronica in the late afternoon or early evening the
day before the murders; Veronica was with Ashley and Victor.
Veronica seemed sad and quiet.
v. Expert testimony
Jason Tovar, the chief forensic pathologist at the
Sacramento County Coroner’s Office, testified as a cause-of-death
expert for the defense. Tovar opined it was not possible to
determine conclusively the source of bloodstains on Renzo’s sleeve.
Tovar described a study that showed that in only 50 percent of
firearm suicides is gunshot residue found on the victim’s hand.
Tovar testified Renzo could have maintained sufficient motor
function in his right hand after the shooting to hold onto the gun,
but that it was also possible Renzo’s wound was immediately
incapacitating.
Iris Blandon-Gitlin, a research psychologist, gave expert
testimony for the defense about false memories and the limitations
of human memory. Blandon-Gitlin testified that human memory
does not record even consequential traumatic events “like a video
camera,” and that memories fade over time. Blandon-Gitlin also
explained that people can develop false memories of events that
did not occur, and that repeating a memory, whether true or false,
makes the memory stronger.
C. The Jury Verdicts and the Sentencing
The jury convicted Alvarado on all charges and found the
multiple-murder special circumstance, the lying-in-wait special
circumstance, and the firearm allegations true.
The trial court sentenced Alvarado on the murder counts
(counts 1, 2, 3 and 4) to four consecutive terms of life without
21
parole, plus four terms of 25 years to life for the firearm
enhancements pursuant to section 12022.53, subdivision (d). On
count 5 (forcible lewd act upon a child under 14 years old) and
count 6 (lewd act upon a child under 14 years old), the court
sentenced Alvarado to a consecutive determinate aggregate term
of 10 years, the upper term of eight years on count 5 and one-third
the middle term of six years (two years) on count 6.11 The court
ordered Alvarado to pay $61,567 in victim restitution, a $10,000
restitution fine, and a $200 sex offender fine. The court awarded
Alvarado 1,387 days of presentence custody credits.12
Alvarado filed a timely appeal.
DISCUSSION
A. The Trial Court Did Not Abuse Its Discretion by Excluding
the Gang Evidence
1. Relevant proceedings
Alvarado sought to introduce evidence Renzo was a member
of the “Anybody Killer” gang and had inscribed the gang’s initials
11 Section 669, subdivision (a), provides, “Whenever a person is
committed to prison on a life sentence which is ordered to run
consecutive to any determinate term of imprisonment, the
determinate term of imprisonment shall be served first and no
part thereof shall be credited toward the person’s eligibility for
parole as calculated pursuant to Section 3046 or pursuant to any
other section of law that establishes a minimum period of
confinement under the life sentence before eligibility for parole.”
12 The trial court later awarded Alvarado an additional day of
presentence custody credit for a total award of 1,388 days. The
trial court denied Alvarado’s postjudgment motions to strike or
stay the restitution fine and to strike the sex offender fine.
22
“ABK” on the gun.13 Defense counsel argued Renzo’s alleged gang
membership was relevant because “it was one of the things that he
was fighting over with his parents.” The trial court ruled Renzo’s
alleged gang membership and the name of the gang were
irrelevant and more prejudicial than probative:
“We are not going to infect this trial with that.
[¶] I . . . don’t see how whether [Renzo] was a gang
member is relevant to this domestic situation.
[¶] [I]f he committed suicide, I don’t think that
whether he was a gang member or not has anything
to do with it. If he killed his father and his
stepbrother [sic] and his stepmother [sic], the fact
that he was a gang member, if he was, . . . doesn’t
really have anything to do with it. [¶] [T]he mere
fact that [Renzo] was in a gang . . . sounds like to me
to . . . dirty him up on something that normally
[defense counsel] would be arguing in most cases . . .
I don’t allow in with regard to defendants and
defense witnesses. [¶] [I]t has to have some
connection to what happened in that house.”
Alvarado later sought to introduce evidence “Anybody Killer”
and “ABK” were written on Renzo’s bedroom wall to support an
argument the initials on the gun proved Renzo owned the gun.
The court ruled the initials would be admitted, but the term
“Anybody Killer” should not be mentioned before the jury.
13 Detective Winter testified the initials “AK” were etched on
the gun frame.
23
2. Governing law and standard of review
“Only relevant evidence is admissible at trial. [Citation.]
Under Evidence Code section 210, relevant evidence is evidence
‘having any tendency in reason to prove or disprove any disputed
fact that is of consequence to the determination of the action.’ A
trial court has ‘considerable discretion’ in determining the
relevance of evidence. [Citation.] Similarly, the court has broad
discretion under Evidence Code section 352 to exclude even
relevant evidence if it determines the probative value of the
evidence is substantially outweighed by its possible prejudicial
effects.” (People v. Merriman (2014) 60 Cal.4th 1, 74 (Merriman);
accord, People v. Hardy (2018) 5 Cal.5th 56, 87; see People v. Duff
(2014) 58 Cal.4th 527, 558 [reviewing courts “afford trial courts
wide discretion in assessing whether in a given case a particular
piece of evidence is relevant and whether it is more prejudicial
than probative”].)
“A trial court’s ruling on the admission or exclusion of
evidence is reviewed for abuse of discretion.” (People v. DeHoyos
(2013) 57 Cal.4th 79, 131; accord, People v. Cowan (2010)
50 Cal.4th 401, 462.) “‘A trial court’s decision to admit or exclude
evidence is a matter committed to its discretion “‘and will not be
disturbed except on a showing the trial court exercised its
discretion in an arbitrary, capricious, or patently absurd manner
that resulted in a manifest miscarriage of justice.”’”’ (People v.
Masters (2016) 62 Cal.4th 1019, 1056.)
3. Analysis
Alvarado’s defense theory was that Renzo murdered his
family and killed himself. Alvarado contends that by excluding
evidence of Renzo’s alleged gang membership and that Renzo
etched the gang’s initials on the gun, the trial court prevented
24
Alvarado from “paint[ing] Renzo in a bad light” and tying Renzo to
the gun, which would have helped Alvarado prove Renzo, not
Alvarado, was the killer.
“A criminal defendant may introduce evidence of third party
culpability if such evidence raises a reasonable doubt as to his
guilt, but the evidence must consist of direct or circumstantial
evidence that links the third person to the crime. It is not enough
that another person has the motive or opportunity to commit it.”
(People v. Abilez (2007) 41 Cal.4th 472, 517; accord, People v.
McWhorter (2009) 47 Cal.4th 318, 367-368; People v. Hall (1986)
41 Cal.3d 826, 833 (Hall).) “[C]ourts should simply treat third-
party culpability evidence like any other evidence: if relevant it is
admissible (§ 350) unless its probative value is substantially
outweighed by the risk of undue delay, prejudice, or confusion
(§ 352). We recognize that an inquiry into the admissibility of
such evidence and the balancing required under [Evidence Code]
section 352 will always turn on the facts of the case.” (Hall, at
p. 834.)
The trial court did not abuse its discretion in concluding the
gang evidence was irrelevant and more prejudicial than probative.
There was no evidence any of the crimes related to gangs or to
Renzo’s alleged membership in a gang. Both the People and
Alvarado argued the murders stemmed from family discord,
although they contended different family members committed the
murders. Neither the People nor Alvarado argued the murders
were gang-motivated.
Moreover, as Alvarado concedes, the People did not dispute
that Renzo had access to the gun. Numerous witnesses testified
they had seen both Renzo and Alvarado handle the gun. Escobar
testified Renzo and Alvarado showed him a gun at the apartment.
Jarmon told detectives Renzo had a gun, and that Jarmon had
25
seen both Renzo and Alvarado with a gun in the apartment.
Hargrave testified Renzo and Alvarado showed her a gun in
Renzo’s bedroom before the murders. Whether Renzo etched gang
initials on the gun was irrelevant to whether Renzo had access to
the gun; the People did not contend he did not. The trial court did
not abuse its discretion by excluding the gang evidence.14
B. The Trial Court Did Not Abuse Its Discretion by Admitting
the Uncharged Rape Evidence
1. Relevant proceedings
The People moved pursuant to Evidence Code sections 1101
and 1108 to admit evidence of Alvarado’s uncharged rape of Nunez
as probative of the sex offense charges.15 Defense counsel did not
14 Alvarado argues the exclusion of the gang evidence also
violated his rights to confront and cross-examine witnesses and to
present a defense. Even if Alvarado did not forfeit these claims by
failing to raise them in the trial court (see People v. Lewis and
Oliver (2006) 39 Cal.4th 970, 1028, fn. 19; People v. Partida (2005)
37 Cal.4th 428, 435), the claims lack merit. “As a general matter,
the ordinary rules of evidence do not impermissibly infringe on the
accused’s right to present a defense. Courts retain, moreover, a
traditional and intrinsic power to exercise discretion to control the
admission of evidence in the interests of orderly procedure and the
avoidance of prejudice.” (Hall, supra, 41 Cal.3d at p. 834; see
People v. Hovarter (2008) 44 Cal.4th 983, 1010 [“The ‘routine
application of state evidentiary law does not implicate [a]
defendant’s constitutional rights.’”]; People v. Benavides (2005)
35 Cal.4th 69, 91; People v. Brown (2003) 31 Cal.4th 518, 545.) As
discussed, the gang evidence was irrelevant to any material issues
in dispute.
15 Evidence Code section 1101 prohibits the admission of
evidence of a defendant’s character, including evidence of
character in the form of specific instances of uncharged
26
file a written opposition to the People’s motion, but objected orally
the evidence was “late discovery.” The trial court ruled the
evidence was admissible:
“I do think it’s admissible. I don’t think that the
People delayed in revealing that information to the
defense. [¶] [Nunez and Ashley] are both underaged
females, raped allegedly in the apartment, no one
else present, with a very similar M.O. And under
[Evidence Code section] 1108, as well as [Evidence
Code section] 1101, the court believes that it is not
more prejudicial than probative. After all, the four
murders are far more serious than those sex charges
by themselves. And so I am going to allow the
admissibility [sic] of that evidence.”
Consistent with the court’s ruling, Nunez testified Alvarado raped
her in the apartment a few weeks before the murders.
2. Governing law and standard of review
“The general public policy on character or propensity
evidence is that it is not admissible to prove conduct on a given
occasion.” (People v. Cottone (2013) 57 Cal.4th 269, 285.) Evidence
Code section 1108 is an exception to this general policy. It
provides in relevant part: “In a criminal action in which the
misconduct, to prove the defendant’s conduct on a specified
occasion, except that evidence of uncharged misconduct may be
admitted when such evidence is relevant to establish some fact
other than the defendant’s character or disposition, such as
identity, common plan, or intent. Evidence Code section 1108
permits the admission of evidence of uncharged sex offenses to
show the defendant has a disposition or propensity to commit sex
offenses.
27
defendant is accused of a sexual offense, evidence of the
defendant’s commission of another sexual offense or offenses is not
made inadmissible by [Evidence Code] [s]ection 1101, if the
evidence is not inadmissible pursuant to [Evidence Code]
[s]ection 352.” (Evid. Code, § 1108, subd. (a).) Under Evidence
Code section 1108, evidence of uncharged sex offenses is
admissible to show the defendant has a disposition or propensity
to commit sex offenses. (People v. Falsetta (1999) 21 Cal.4th 903,
910-911 (Falsetta).)
Evidence Code section 1108 establishes a “strong
presumption of admissibility” of sexual offense evidence to show
propensity to commit the charged offense. (Merriman, supra,
60 Cal.4th at p. 42.) It nonetheless “preserves the trial court’s
discretion to exclude evidence under [Evidence Code] section 352 if
its prejudicial effect substantially outweighs its probative value.”
(People v. Story (2009) 45 Cal.4th 1282, 1294-1295.)
Five factors are “particularly significant” in an Evidence
Code section 1108 analysis: (1) whether the propensity evidence
has probative value, e.g., whether the uncharged conduct is
similar enough to the charged behavior to tend to show
defendant did in fact commit the charged offense; (2) whether the
propensity evidence is stronger and more inflammatory than
evidence of the defendant’s charged acts; (3) whether the
uncharged conduct is remote or stale; (4) whether the propensity
evidence is likely to confuse or distract the jurors from their main
inquiry, e.g., whether the jury might be tempted to punish the
defendant for his uncharged, unpunished conduct; and (5) whether
admission of the propensity evidence will require an undue
consumption of time. (People v. Nguyen (2010) 184 Cal.App.4th
1096, 1117 (Nguyen).) A ruling admitting evidence under
28
Evidence Code section 1108 is reviewed for abuse of discretion.
(People v. Erskine (2019) 7 Cal.5th 279, 296 (Erskine).)
3. Analysis
Alvarado contends the trial court abused its discretion under
Evidence Code section 352 by admitting the uncharged rape
evidence pursuant to Evidence Code section 1108. The factors
relevant to the Evidence Code section 1108 analysis demonstrate
the trial court did not abuse its discretion.
First, the similarity of the offenses renders the uncharged
rape evidence probative. Both Nunez and Ashley were underage,
lacked capacity to consent, and were alone with Alvarado in the
apartment. Alvarado subdued both of them by pinning their
wrists above their heads before attacking them. Alvarado claims
the uncharged and charged offenses had “very dissimilar factual
underpinnings” because Alvarado and Nunez were in a “dating
relationship.” That Alvarado’s relationship with Nunez may have
been different in nature from his relationship with Ashley does not
demonstrate he did not employ similar methods in both attacks.16
The uncharged rape evidence was “similar enough to the charged
behavior to tend to show” Alvarado committed the charged
offenses. (Nguyen, supra, 184 Cal.App.4th at p. 1117.)
Second, the uncharged rape evidence was not more
inflammatory than Ashley’s testimony about the charged offenses.
(See People v. Ennis (2010) 190 Cal.App.4th 721, 725-726 (Ennis)
[“[w]hatever emotional bias might have been invoked against
16 Defense counsel cross-examined Nunez about her
relationship with Alvarado, and argued the jury should disbelieve
Nunez’s account of her rape because Alvarado’s relationship with
Nunez was “like a romance novel” and “a bad television show.”
29
Ennis at trial, would have been fully invoked by the multitude of
horrific crimes actually charged in this case. The additional
evidence suggesting he may have done more of the same to one of
those victims, and perhaps to another family member as well, in
Arizona, would not significantly change the jury’s perception of
him”].) In addition, the trial court instructed the jury that the
uncharged rape evidence “is not sufficient by itself to prove that
the defendant is guilty of the crimes alleged in counts five and six.
The People must still prove each charge beyond a reasonable
doubt.”
Third, the uncharged rape was not remote or stale. Nunez
testified Alvarado raped her in the apartment two to three weeks
before the murders and Ashley’s assault. (Cf. People v. Hollie
(2010) 180 Cal.App.4th 1262, 1276 (Hollie) [two years between
offenses not remote]; see also People v. Robertson (2012)
208 Cal.App.4th 965, 992 [34 years between offenses not too
remote]; People v. Branch (2001) 91 Cal.App.4th 274, 285 [30 years
between offenses not too remote].)
Fourth, there is little risk the jury confused the uncharged
and charged conduct, or the jury would be tempted to punish
Alvarado for the uncharged conduct. Nunez and Ashley testified
about Alvarado’s separate attacks on them. The trial court
instructed the jury that “the People presented evidence that the
defendant committed the offense of rape of Jazmin Nunez that was
not charged in this case,” and further instructed the jury on the
“limited purpose” for which it could consider that evidence, “[i]f
you decide that the defendant committed the uncharged offense.”
The court emphasized: “Do not consider this evidence for any
other purpose except for the limited purpose” defined in the jury
instructions. Where the “jury was given an effective instruction by
the trial court to consider the evidence only for proper limited
30
purposes, . . . we must presume the jury adhered to the
admonitions.” (Hollie, supra, 180 Cal.App.4th at p. 1277.)
Furthermore, because of the similarity of the sexual assaults, the
jury was unlikely to convict Alvarado of sexually abusing Ashley to
punish him for raping Nunez. (See Ennis, supra, 190 Cal.App.4th
at p. 734 [“we are confident that whatever ‘emotional bias’ the
Arizona evidence might have tended to invoke against Ennis was
nugatory, given the substantially identical evidence offered
regarding the California crimes which were actually at issue”].)
Fifth, Nunez testified for only a few hours in a multi-week
trial with numerous witnesses. Her testimony did not require an
undue consumption of time. The trial court did not abuse its
discretion by admitting the uncharged rape evidence pursuant to
Evidence Code section 1108.17
C. Evidence Code Section 1108 Is Constitutional
Alvarado contends Evidence Code section 1108 is
unconstitutional. Alvarado acknowledges the Supreme Court
rejected this argument in Falsetta, supra, 21 Cal.4th at p. 907.
The Supreme Court has “repeatedly declined” to reconsider
Falsetta. (People v. Molano (2019) 7 Cal.5th 620, 664; see People v.
Lewis (2009) 46 Cal.4th 1255, 1288-1289.) As an intermediate
17 Because we conclude the trial court did not err in admitting
the uncharged rape evidence pursuant to Evidence Code
section 1108, the admission of that evidence also did not violate
Evidence Code section 1101, subsection (b). (Erskine, supra,
7 Cal.5th at p. 296 [“‘It follows that if evidence satisfies the
requirements of [Evidence Code] section 1108, including that it is
not inadmissible under [Evidence Code] section 352, then the
admission of that evidence does not violate [Evidence Code]
section 1101’”]; People v. Story, supra, 45 Cal.4th at p. 1295.)
31
appellate court, we are bound to follow the Supreme Court’s
decisions. (K.R. v. Superior Court (2017) 3 Cal.5th 295, 308 (K.R.)
[“‘it is established that a holding of the Supreme Court binds all of
the lower courts in the state, including an intermediate appellate
court’”]; People v. Johnson (2012) 53 Cal.4th 519, 527-528
(Johnson) [decisions of Supreme Court are binding on appellate
courts]; Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d
450, 455 (Auto Equity Sales) [“[t]he decisions of this court are
binding upon and must be followed by all the state courts of
California”].)
D. Instruction with CALCRIM No. 1191 Did Not Violate
Alvarado’s Constitutional Rights
The trial court instructed the jury with CALCRIM No. 1191
(evidence of uncharged sex offense):18 “The People have presented
evidence that the defendant committed the crime of rape of Jazmin
Nunez that was not charged in this case. This crime is defined for
you in these instructions. [¶] You may consider this evidence only
if the People have proved, by a preponderance of the evidence, that
the defendant in fact committed the uncharged offense. [¶] Proof
by a preponderance of the evidence is a different burden of proof
than proof beyond a reasonable doubt. [¶] A fact is proved by a
preponderance of the evidence if you conclude that it is more likely
than not that the fact is true. If the People have not met this
burden, you must disregard this evidence entirely. [¶] If you
18 “In March 2017, CALCRIM No. 1191 was modified to
distinguish uncharged offenses offered as propensity evidence from
charged offenses offered for that purpose. CALCRIM No. 1191A
now applies to the former, while CALCRIM No. 1191B applies to
the latter.” (People v. Gonzales (2017) 16 Cal.App.5th 494, 496,
fn. 1.)
32
decide that the defendant committed the uncharged offense, you
may but are not required to conclude from that evidence that the
defendant was disposed or inclined to commit sexual offenses, and
based on that decision, also conclude that the defendant was likely
to commit and did commit sexual offenses in counts five and six as
charged here. [¶] If you conclude that the defendant committed
the uncharged offense, that conclusion is only one factor to
consider, along with all the other evidence. [¶] It is not sufficient
by itself to prove that the defendant is guilty of the charges alleged
in counts five and six. The People must still prove each charge
beyond a reasonable doubt.” Alvarado argues instruction with
CALCRIM No. 1191 violated his due process rights because it
permitted the jury to infer his guilt of the charged counts based on
a propensity to commit sexual crimes.19
CALCRIM No. 1191, as given here, correctly stated the law
regarding the jury’s use of evidence of an uncharged sexual
offense. In People v. Reliford (2003) 29 Cal.4th 1007 (Reliford), the
Supreme Court held that CALJIC No. 2.50.01, the former
propensity evidence instruction given in sex offense cases,
correctly stated the law and did not violate due process. (Reliford,
at pp. 1009, 1012-1016.) In People v. Cromp (2007)
19 Alvarado did not forfeit this argument because the alleged
instructional error affects his substantial rights. (People v.
Mitchell (2019) 7 Cal.5th 561, 579-580 [“because [appellant] failed
to object below, his state law claims asserting error on the
instructions have been forfeited. [Citation.] But failure to object
to instructional error will not result in forfeiture if the substantial
rights of the defendant are affected. [Citations.] Here, [appellant]
claims that the flawed instructions deprived him of due process,
and because this would affect his substantial rights if true, his
claim is not forfeited”].)
33
153 Cal.App.4th 476, the court held that CALCRIM No. 1191 is
not materially different from CALJIC No. 2.50.01, and the court
thus rejected the defendant’s due process challenge to CALCRIM
No. 1191. (Cromp, at p. 480.) The Supreme Court and other
appellate courts have reached the same conclusion. (See People v.
Villatoro (2012) 54 Cal.4th 1152, 1160; People v. Phea (2018) 29
Cal.App.5th 583, 609 (Phea); People v. Schnabel (2007) 150
Cal.App.4th 83, 87.) For the purpose of evaluating Alvarado’s
contentions, there is “no material difference” between CALCRIM
No. 1191 and its predecessor CALJIC No. 2.50.01. (Phea, at
p. 609.) We are bound to follow Reliford and Villatoro.20 (K.R.,
supra, 3 Cal.5th at p. 308; Johnson, supra, 53 Cal.4th at pp. 527-
528; Auto Equity Sales, supra, 57 Cal.2d at p. 455.)
20 Alvarado also argues CALCRIM No. 1191, read together
with CALCRIM No. 200 (duties of judge and jury) and CALCRIM
No. 224 (circumstantial evidence: sufficiency of evidence), confused
and misled the jury about the burden of proof. Neither CALCRIM
No. 200 nor CALCRIM No. 224 refers to uncharged sexual offense
evidence. Further, CALCRIM No. 1191 states that if the jury
concludes the defendant committed the uncharged offense, “[t]he
People must still prove each charge beyond a reasonable doubt.”
The court also instructed the jury that “[u]nless the evidence
proves the defendant guilty beyond a reasonable doubt, he is
entitled to an acquittal and you must find him not guilty.”
Alvarado has not demonstrated these instructions confused or
misled the jury. (See Phea, supra, 29 Cal.App.5th at p. 613 [“it is
apparent our high court saw no conflict between the [Evidence
Code] section 1108 instruction and the circumstantial evidence
instruction”].)
34
E. Instruction with CALCRIM No. 1193 Did Not Violate
Alvarado’s Constitutional Rights
The trial court instructed the jury with CALCRIM No. 1193
(testimony on child sexual abuse accommodation syndrome): “You
have heard testimony from Mindy Mechanic regarding child
sexual abuse accommodation syndrome. Her testimony about
child sexual abuse accommodation syndrome is not evidence that
the defendant committed any of the crimes charged against him.
You may consider this evidence only in deciding whether or not
Ashley A.’s conduct was not inconsistent with the conduct of
someone who has been molested and in evaluating the
believability of her testimony.” Alvarado argues CALCRIM
No. 1193 erroneously instructed the jury it could use child sexual
abuse accommodation syndrome (CSAAS) evidence to evaluate the
believability of Ashley’s testimony, which lessened the People’s
burden of proof and violated Alvarado’s constitutional rights.
“[E]xpert testimony on the common reactions of child
molestation victims is not admissible to prove that the
complaining witness has in fact been sexually abused; it is
admissible to rehabilitate such witness’s credibility when the
defendant suggests that the child’s conduct after the incident—
e.g., a delay in reporting—is inconsistent with his or her testimony
claiming molestation. [Citations.] ‘Such expert testimony is
needed to disabuse jurors of commonly held misconceptions about
child sexual abuse, and to explain the emotional antecedents of
abused children’s seemingly self-impeaching behavior.’” (People v.
McAlpin (1991) 53 Cal.3d 1289, 1300-1301 (McAlpin).)
CALCRIM No. 1193, as given here, correctly stated the law
regarding the jury’s use of CSAAS evidence. McAlpin provides
that CSAAS evidence is admissible to rehabilitate a victim’s
35
“credibility” when it is at issue, as Ashley’s was in this case.
(McAlpin, supra, 53 Cal.3d at pp. 1300-1301.) In accordance with
McAlpin, CALCRIM No. 1193 instructs the jury it may use CSAAS
evidence to evaluate the “believability”—that is, the credibility—of
the witness. The instruction also states the CSAAS evidence “is
not evidence that the defendant committed any of the crimes
charged against him.” Alvarado’s contention that CALCRIM
No. 1193 improperly instructs the jury that it may use CSAAS
evidence to evaluate the believability of the victim’s testimony is
essentially an argument McAlpin was wrongly decided. We are
bound to follow McAlpin. (K.R., supra, 3 Cal.5th at p. 308;
Johnson, supra, 53 Cal.4th at pp. 527-528; Auto Equity Sales,
supra, 57 Cal.2d at p. 455.)
F. The Multiple-murder and Lying-in-wait Special
Circumstances Are Constitutional
Section 190.2, subdivision (a)(3), provides a penalty of death
or life imprisonment without parole for a defendant found guilty of
first degree murder with a special circumstance of committing
multiple murders. Section 190.2, subdivision (a)(15), provides a
penalty of death or life imprisonment without parole for a
defendant found guilty of first degree murder with a special
circumstance of intentionally killing the victim by means of lying
in wait. Alvarado argues these statutes are unconstitutional
because both too broadly make defendants death eligible. The
Supreme Court has repeatedly rejected these arguments.
(People v. Covarrubias (2016) 1 Cal.5th 838, 934 [multiple-
murder]; People v. Solomon (2010) 49 Cal.4th 792, 843 [multiple-
murder]; People v. Stevens (2007) 41 Cal.4th 182, 203-204, 211
[multiple-murder and lying-in-wait]; People v. Nakahara (2003)
30 Cal.4th 705, 721 [lying-in-wait]; People v. Gutierrez (2002)
36
28 Cal.4th 1083, 1148-1149 [lying-in-wait].) We are bound to
follow the Supreme Court’s decisions. (K.R., supra, 3 Cal.5th at
p. 308; Johnson, supra, 53 Cal.4th at pp. 527-528; Auto Equity
Sales, supra, 57 Cal.2d at p. 455.)
G. Section 190.5 Is Constitutional
Section 190.5 gives a trial court discretion to sentence a 16-
or 17-year-old juvenile offender convicted of special circumstance
murder to either life without parole or 25 years to life.
Section 3051, as amended by Senate Bill No. 394, provides that a
juvenile offender serving a life without parole sentence is eligible
for parole after 25 years. Alvarado contends these sentencing
provisions violate the Eighth Amendment’s prohibition on cruel
and unusual punishment because the future parole hearing “may
be taken away at any time by future legislative action.”
In People v. Gutierrez (2014) 58 Cal.4th 1354 the Supreme
Court “adopt[ed] the construction” of section 190.5, subdivision (b),
that “render[ed] it “‘free from doubt as to its constitutionality,”’”
and held that “section 190.5(b) confers discretion on the sentencing
court to impose either life without parole or a term of 25 years to
life on a 16- or 17-year-old juvenile convicted of special
circumstance murder, with no presumption in favor of life without
parole.” (Id. at p. 1387.) We are bound to follow Gutierrez. (K.R.,
supra, 3 Cal.5th at p. 308; Johnson, supra, 53 Cal.4th at pp. 527-
528; Auto Equity Sales, supra, 57 Cal.2d at p. 455.) Alvarado’s
argument that he may someday be deprived of a parole hearing is
speculative. (See People v. Lozano (2017) 16 Cal.App.5th 1286,
1288-1289 [dismissing appeal as moot because after enactment of
section 3051 “Lozano is no longer subject to [a life without parole]
sentence”].)
37
H. Alvarado Forfeited His Challenges to the Restitution and Sex
Offender Fines
At Alvarado’s sentencing hearing on May 1, 2018, the trial
court ordered Alvarado to pay a $10,000 restitution fine pursuant
to section 1202.4, subdivision (b), and a $200 sex offender fine
pursuant to section 290.3. Alvarado did not object to either fine at
the sentencing hearing.
On July 19, 2019 Alvarado filed a motion in the trial court to
strike or stay the restitution fine and to strike the sex offender fine
pursuant to this court’s decision in People v. Dueñas (2019)
30 Cal.App.5th 1157 (Dueñas). In Dueñas, this court held that
imposing assessments on “indigent defendants without a
determination that they have the present ability to pay violates
due process under both the United States Constitution and the
California Constitution,” and that “due process of law requires the
trial court to conduct an ability to pay hearing and ascertain a
defendant’s present ability to pay before it imposes [such]
assessments.”21 (Id. at pp. 1164, 1168.) Alvarado argued he “will
likely be destitute for the rest of his life. He was appointed
counsel in [the trial court] and in the court of appeal. He is
indigent, and there has been no showing he has an ability to pay
the fines and fees—now or ever.” The trial court denied the
motion on August 6, 2019.
21 In People v. Kopp (2019) 38 Cal.App.5th 47, review granted
November 13, 2019, S257844, the Supreme Court has directed the
parties to brief the following issues: “Must a court consider a
defendant’s ability to pay before imposing or executing fines, fees,
and assessments? If so, which party bears the burden of proof
regarding defendant’s inability to pay?”
38
Citing Dueñas, Alvarado argues the restitution and sex
offender fines should be stricken or stayed unless and until the
People demonstrate Alvarado can pay them. Alvarado forfeited
these arguments.
Section 1202.4, subdivision (b), states: “In every case where
a person is convicted of a crime, the court shall impose a separate
and additional restitution fine, unless it finds compelling and
extraordinary reasons for not doing so and states those reasons on
the record.” A restitution fine under section 1202.4,
subdivision (b), “is intended to be, and is recognized as, additional
punishment for a crime.” (Dueñas, supra, 30 Cal.App.5th at
p. 1169.) Under section 1202.4, subdivision (c), the trial court may
not consider a defendant’s ability to pay when imposing the
minimum restitution fine of $300, but the court may consider the
defendant’s ability to pay if the court imposes a restitution fine
above the minimum. (People v. Miracle (2018) 6 Cal.5th 318, 356
(Miracle); see § 1202.4, subd. (d) [“[i]n setting the amount of the
[restitution] fine . . . in excess of the minimum fine,” the court
“shall consider any relevant factors, including, but not limited to,
the defendant’s inability to pay”]; Dueñas, at p. 1170, fn. 6 [“a trial
court may . . . consider a defendant’s ability to pay if the court is
considering imposing a restitution fine in excess of the statutory
minimum amount”].)
Here, because the $10,000 restitution fine exceeded the
statutory minimum, Alvarado had the opportunity to object at the
sentencing hearing based on an inability to pay. By failing to
object, Alvarado forfeited the argument the trial court erred by
imposing the fine without considering his ability to pay. (See
Miracle, supra, 6 Cal.5th at p. 356 [“[b]ecause [the] defendant did
not object to the [restitution] fine at his sentencing hearing, he has
forfeited his challenge”]; People v. Avila (2009) 46 Cal.4th 680, 729
39
[“in not adducing evidence of his inability to pay” a $10,000
restitution fine, the defendant “forfeited the argument”]; People v.
Gutierrez (2019) 35 Cal.App.5th 1027, 1033 (Gutierrez) [defendant
“forfeited any ability-to-pay argument regarding the restitution
fine by failing to object”].)
Alvarado also forfeited his challenge to the $200 sex offender
fine. Under section 290.3, subdivision (a), the trial court must
impose a fine on every person convicted of a sex offense specified in
section 290, subdivision (c), “unless the court determines that the
defendant does not have the ability to pay the fine.” (§ 290.3,
subd. (a).) By failing to object to the sex offender fine at
sentencing, Alvarado forfeited the argument the trial court erred
by imposing the fine without considering his ability to pay. (See
People v. Acosta (2018) 28 Cal.App.5th 701, 705; People v.
McMahan (1992) 3 Cal.App.4th 740, 749-750 [“[i]t should be
incumbent upon the defendant to affirmatively argue against
application of the [section 290.3 sex offender] fine and demonstrate
why it should not be imposed,” in part because “the most
knowledgeable person regarding the defendant’s ability to pay
would be the defendant himself”].)22
22 Furthermore, by failing to object to the $10,000 restitution
fine, which is many times greater than the $200 sex offender fine,
Alvarado demonstrated he would not have challenged or argued he
did not have the ability to pay the $200 fine, even if Dueñas had
been decided when the trial court sentenced Alvarado, and even if
section 290.3, subdivision (a), did not address a defendant’s ability
to pay the fine. (See People v. Smith (2020) 46 Cal.App.5th 375,
395 [defendant forfeited his challenge to assessments and fines
because he “did not object in the trial court on the grounds that he
was unable to pay, even though the trial court ordered him to pay
the $10,000 statutory maximum restitution fine”]; Gutierrez,
40
DISPOSITION
The judgment is affirmed.
McCORMICK, J.*
We concur:
SEGAL, Acting P. J.
FEUER, J.
supra, 35 Cal.App.5th at p. 1033 [“[a]s a practical matter, if [the
defendant] chose not to object to a $10,000 restitution fine based
on an inability to pay, he surely would not complain on similar
grounds regarding an additional $1,300 in fees”]; but see People v.
Taylor (2019) 43 Cal.App.5th 390, 400-401 [defendant did not
forfeit Dueñas challenge to court operations and facilities
assessments, even though he did not object to the maximum
$10,000 restitution fine, because the “defendant’s inability to pay
is just one among many factors the court should consider in setting
the restitution fine above the minimum”].)
* Judge of the Orange County Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
41