People v. Alvarez
| Decision Date | 27 March 2018 |
| Docket Number | F072516 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. JUAN CARLOS ALVAREZ, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINIONAPPEAL from a judgment of the Superior Court of Kings County. Donna L. Tarter, Judge.
Chris R. Redburn, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Amanda D. Cary and Ian Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
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Juan Carlos Alvarez stands convicted of multiple felony offenses including attempted murder, assault with a deadly weapon, and active participation in a criminal street gang. His claims on appeal allege ineffective assistance of counsel, evidentiary error, and sentencing error. He further contends that the trial court erred by denying a motion for the replacement of appointed counsel pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden). We reject all but one of his claims, and the exception concerns an inapplicable sentencing enhancement. The judgment will be modified to strike that enhancement. Subject to this modification, we affirm.
The Kings County District Attorney charged Alvarez with attempted premeditated murder (Pen. Code,1 §§ 187, 189, 664; count 1); assault with a deadly weapon (§ 245, subd. (a)(1); count 2); active participation in a criminal street gang (§ 186.22, subd. (a); count 3); misdemeanor resisting arrest (§ 148, subd. (a)(1); count 4); possession of a firearm by a convicted felon (§ 29800, subd. (a)(1); count 5); possession of a firearm by a former juvenile offender under the age of 30 (§ 29820, subd. (b); count 6); carrying a concealed firearm (§ 25400, subd. (a)(2); count 7); and felony possession of ammunition (§ 30305, subd. (a)(1); count 8). There were enhancement allegations of gang-related conduct (§ 186.22, subd. (b); counts 1 & 2) and personal infliction of great bodily injury (§ 12022.7, subd. (a); counts 1-3). It was further alleged that Alvarez had suffered a prior strike and serious felony conviction (§§ 667, subds. (a), (b)-(i), 1170.12, subds. (a)-(d)) and had served a prior prison term (§ 667.5, subd. (b)).
Alvarez pleaded no contest to counts 5-8, which pertained to events not at issue in this appeal. He also admitted as true the recidivist enhancement allegations. All remaining charges were tried before a jury in August 2015.
On November 23, 2014, the victim, John Doe, was attacked by two men outside of a community center in Corcoran. The incident occurred at approximately 8:00 p.m. as Doe was walking home from a nearby store. When he encountered the perpetrators, theyasked if he was a gang member and also requested that he give them money toward the purchase of a "40," i.e., beer/malt liquor. The victim ignored them and continued walking. He was struck from behind and then stabbed in the face, chest and torso. Afterwards, the assailants "took off running[,] yelling out 'North Side' [and] 'Norte.' "
Although gravely injured, the victim was able to walk off in search of help. Someone called the police, and the officers who were dispatched to the community center found him shirtless and covered in blood. He had apparently removed some of his clothes and left them at the site of the attack. An investigating officer followed a trail of blood to the victim's clothing, where he also found "a large Budweiser beer can" and a "40 ounce Hurricane beer bottle." The bottle, which was located approximately 20 feet away from the clothes, was wrapped in a plastic bag and appeared to have been recently opened; "it still had an alcoholic beverage or liquid inside of it that was cool to the touch and still foaming and spilling out of the neck." The items were collected for forensic testing.
The victim was hospitalized for treatment of a collapsed lung and multiple stab wounds. On or about November 25, 2014, while still in the intensive care unit, he discussed the incident with Officer Benjamin Beavers of the Corcoran Police Department. The victim recounted that he had purchased a can of Budweiser and was on his way home when he noticed two people in red hooded sweatshirts sitting on a bench drinking beer.2 During the subsequent attack, he observed that one of them was a light-skinned Hispanic male, approximately 21 years old, who was notably "small in stature" and had "pockmarks or craters on his face."
Officer Beavers compiled a six-person photographic line-up of individuals who resembled the victim's description of his attacker. The line-up included a picture ofAlvarez. When shown the images, the victim pointed to Alvarez and said "That's [him], he's small, huh?" Acting on this information, a team of police officers soon made contact with Alvarez outside of his home. Alvarez attempted to flee and ignored Officer Beavers's command to stop. He was apprehended following a chase. A search of his residence yielded "a red shirt, a textbook with some gang writing in it, ... and two 40 ounce bottles [-] beer bottles of Hurricane brand beer empty in the trash can outside."
At trial, the victim purported to recall that during the attack someone had said, "Juan, let's go." He made an in-court identification of Alvarez, testifying that he was "100 percent positive" it was Alvarez who had stabbed him. The victim also claimed to have seen Alvarez outside of the community center two nights prior to the subject incident, explaining that Alvarez had tried to engage him and his fiancée in conversation as they were walking through the area. The victim's fiancée provided corroborating testimony and identified Alvarez in court as the person with whom they had spoken on the earlier occasion. Alvarez had allegedly told them that he was 21 years old, but the fiancée described him as looking like a "little boy."
With regard to the crime scene evidence, investigators were able to pull latent prints off of the grocery bag that had been wrapped around the 40-ounce bottle of malt liquor. As explained by the criminalist who worked on the case, all humans have a unique set of hand prints. The prints on the bag matched those of Alvarez's right palm, left palm, and left thumb.
Another Corcoran police officer, Refugio Aguirre, testified as the People's gang expert. He opined that Alvarez had been an active member of a criminal street gang at the time of the incident and that the crimes were gang-related. A more detailed summary of the gang evidence is provided in our Discussion, post.
The defense rested without presenting evidence. The defense strategy, implemented through cross-examination, was to cast doubt on the reliability of theidentifications of Alvarez that had been made by the victim and his fiancée. John Doe was shown to have originally told Officer Beavers that one of the perpetrators had said, "Jose, that's enough." Several days later, on December 1, 2014, Doe informed the officer that the name he had heard was Juan, not Jose, as he later testified at trial. It was further revealed that on or about November 27, 2014, after Alvarez had been arrested, Officer Beavers provided two pictures of Alvarez to the fiancée. Defense counsel theorized that the fiancée had discovered Alvarez's name and relayed that information to the victim, thus prompting him to change his story with regard to the Jose/Juan discrepancy. The defense also insinuated that seeing the photographs had influenced the fiancée's trial testimony. On cross-examination, she acknowledged that the person she and Doe had met two days prior to the attack had called himself "Downey" or "Donnie."3
Alvarez was convicted as charged and all enhancement allegations were found to be true. The trial court sentenced him to 15 years to life for attempted murder, doubled to 30 years to life because of the prior strike and further enhanced by a consecutive three-year term for infliction of great bodily injury, a consecutive five-year term for the prior serious felony, and a consecutive one-year term for the prison prior. He also received consecutive 16-month terms for counts 5 and 8. A concurrent term was imposed for count 4, and punishment for counts 2, 3, 6, and 7 (including the enhancements) was stayed pursuant to section 654.
Alvarez presents numerous theories of ineffective assistance of counsel. Most of his claims are based on a failure to object to evidence, and one alleges error in noteliciting certain testimony from a witness. For the reasons that follow, we find no grounds for reversal.
To prevail on a claim of ineffective assistance of counsel, an appellant must show "(1) counsel's performance was deficient because it fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel's deficiencies resulted in prejudice." (People v. Centeno (2014) 60 Cal.4th 659, 674.) The test for prejudice is whether there is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Strickland v. Washington (1984) 466 U.S. 668, 694.) An appellate court may forgo the analysis of counsel's performance if it is easier to dispose of the claim for lack of prejudice. (Id. at p. 697; People v. Fairbank (1997) 16 Cal.4th 1223, 1241.)
Alvarez faults his trial attorney for not moving to exclude two pieces of evidence: (1) The...
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