People v. Alvarez

• Decision Date: 05 December 1996
• Docket Number: No. S012261,S012261
• Court: California Supreme Court
• Parties: , 926 P.2d 365, 96 Cal. Daily Op. Serv. 8805, 96 Daily Journal D.A.R. 14,567 The PEOPLE, Plaintiff and Respondent, v. Manuel Machado ALVAREZ, Defendant and Appellant.

Page 385

58 Cal.Rptr.2d 385

14 Cal.4th 155, 926 P.2d 365, 96 Cal. Daily Op. Serv. 8805,

96 Daily Journal D.A.R. 14,567

The PEOPLE, Plaintiff and Respondent, v. Manuel Machado ALVAREZ, Defendant and Appellant.

No. S012261.

Supreme Court of California.

Dec. 5, 1996.

Rehearing Denied Feb. 19, 1997.

Page 395

Terrence Verson Scott, Los Angeles, and Andrew E. Rubin, San Bernardino, under appointments by the Supreme Court, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Assistant Attorney General, Margaret Venturi and Shirley A. Nelson, Deputy Attorneys General, for Plaintiff and Respondent.

MOSK, Justice.

This is an automatic appeal (Pen.Code, § 1239, subd. (b)) from a judgment including a sentence of death rendered under the 1978 death penalty law (id., § 190 et seq.). For the reasons that follow, we shall affirm.

I. INTRODUCTION

In the Sacramento Superior Court, defendant, Manuel Machado Alvarez, and a codefendant, Belinda Denise Ross, were charged in an amended information by the Sacramento District Attorney on behalf of the People, as follows.

In count 1, defendant and Ross were each charged with murdering Allen Birkman. (Pen.Code, § 187, subd. (a).) For death eligibility, they were each alleged to have committed the offense in the course of a robbery (id., § 211) or an attempted robbery (id., §§ 211, 664)--the so-called felony-murder-robbery special circumstance. (Id., § 190.2, subd. (a)(17)(i), as added by § 6 of Prop. 7, approved by initiative, Gen. Elec. (Nov. 7, 1978); accord, Pen.Code, § 190.2, present subd. (a)(17)(A).) For enhancement of sentence, defendant was alleged to have personally used a deadly or dangerous weapon, viz., a knife. (Id., § 12022, subd. (b).)

In count 2, defendant and Ross were each charged with robbing Birkman. For enhancement of sentence, defendant was alleged to have personally used a deadly or dangerous weapon, viz., a knife. For the same purpose, he was also alleged to have intentionally and personally inflicted great bodily injury. (Pen.Code, § 12022.7, as amended by Stats.1979, ch. 145, § 17, p. 341; see Pen.Code, present § 12022.7 [making no reference to the intentional infliction of great bodily injury].)

In count 3, defendant was charged with stealing a vehicle belonging to Edwin Glidewell, viz., a 1975 Chevrolet Camaro. (Veh.Code, former § 10851, as amended by Stats.1986, ch. 1214, § 1, pp. 4293-4294, repealed by terms of Stats.1989, ch. 930, § 11, p. 3260; accord, Veh.Code, present § 10851.)

In count 4, defendant was charged with raping Sandra S. (Pen.Code, § 261, former subd. (2), as amended by Stats.1986, ch. 1299, § 1, pp. 4592-4593; accord, Pen.Code, § 261, present subd. (a)(2).)

In count 5, defendant was charged with robbing Greta Slatten. For enhancement of sentence, he was alleged to have personally used a deadly or dangerous weapon, viz., a blunt instrument.

For enhancement of sentence, defendant was separately alleged to have been convicted of a serious felony, viz., voluntary manslaughter (Pen.Code, § 192, subd. (a)) with personal use of a deadly weapon, prior to his commission of the offenses identified in counts one, two, four, and five, which were

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themselves serious felonies. (Id., § 667, subd. (a).)

For enhancement of sentence, Ross was separately alleged to have been convicted of a serious felony, viz., robbery with personal use of a firearm (Pen.Code, § 12022.5), prior to her commission of the offenses identified in counts one and two, which were themselves serious felonies.

Defendant and Ross each pleaded not guilty to the charges and denied the allegations.

Trial as to guilt for defendant and Ross jointly was by jury. On Ross's motion in the midst of the proceedings pursuant to Penal Code section 1118.1, the superior court ordered the entry of a finding that the felony-murder-robbery special circumstance alleged against her was not sustained because the evidence was insufficient. The jury rendered a guilty verdict against defendant for the murder of Birkman and fixed the degree at the first; together therewith, it made an express finding that he committed the offense in the course of a robbery or attempted robbery, and that he acted with intent to kill; it made a further express finding that he personally used a deadly weapon. It rendered a guilty verdict against Ross as an accessory to the murder of Birkman, but not for the crime itself. In addition, it rendered a guilty verdict against defendant for the attempted robbery of Birkman, but not for the completed crime; together therewith, it made an express finding that he personally used a deadly weapon; it made a further express finding that he intentionally inflicted great bodily injury, and an implied finding that he did so personally. Similarly, it rendered a guilty verdict against Ross for the attempted robbery of Birkman, but not for the completed crime. It next rendered a guilty verdict against defendant for the theft of Glidewell's vehicle. It also rendered a guilty verdict against him for the rape of Sandra S. Finally, it rendered a guilty verdict against him for the robbery of Slatten; together therewith, it made an express finding that he personally used a deadly weapon. Waiving a jury trial on the question, Ross admitted that she had previously been convicted of the alleged serious felony of robbery with personal use of a firearm.

The superior court proceeded to render judgment against Ross: It imposed a sentence of imprisonment comprising a total term of eight years and eight months--three years as an accessory to the murder of Birkman; eight months for the attempted robbery of the same victim (after sixteen months were stayed); and an additional five years for the serious felony enhancement.

Trial as to penalty for defendant was by the same jury. The panel rendered a verdict of death.

After defendant waived a jury trial on the question, the superior court found that he had previously been convicted of the alleged serious felony of voluntary manslaughter with personal use of a deadly weapon.

Denying, among other motions, an application by defendant for modification of the verdict of death under Penal Code section 190.4, subdivision (e), the superior court proceeded to render judgment as follows: For the murder of Birkman, it imposed a sentence of death, staying a sentence of imprisonment for a term of one year for the enhancement for personal use of a deadly or dangerous weapon. For the other offenses, it imposed a sentence of imprisonment comprising a total term of seventeen years and eight months--eight months for the theft of Glidewell's Camaro (after sixteen months were stayed); six years for the rape of Sandra S.; five years for the robbery of Slatten, with an additional year for the enhancement for personal use of a deadly or dangerous weapon; and an additional five years for the serious felony enhancement; a term of three years for the attempted robbery of Birkman, with an additional year for the enhancement for personal use of a deadly or dangerous weapon, was stayed. It also ordered payment of a restitution fine in the amount of $10,000, and a crime prevention fine in the amount of $10.

II. FACTS

For convenience, we shall set out the facts as disclosed at the guilt phase and then the facts as disclosed at the penalty phase.

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A. Guilt Phase

The People presented the jury with a story to the following effect.

In November 1986, defendant was released on parole after serving a term of imprisonment for what would be revealed to be convictions for voluntary manslaughter and assault with a deadly weapon in the Los Angeles Superior Court in 1982. He was bound to Los Angeles by the conditions of his parole.

In March 1987, in violation of such conditions, defendant moved from Los Angeles to Sacramento. Over the following months, he lived, on and off, with Leslie Colyer and Neetelfer Hawkins. He spent the major part of his time obtaining and consuming drugs and alcohol.

On May 12, late at night, defendant was socializing outside an apartment building. Present also was Sandra S. She lived in one of units with her lover and her son. She was then working as a prostitute. Defendant was drunk, and was vomiting. He made a sexual advance on her, but was repulsed. She eventually returned to her apartment, and went to bed.

On May 13, about noon, Sandra S. awoke. Her lover and her son were not at home. She had a "real bad feeling." Looking toward the foot of the bed, she saw defendant. He was standing with his zipper open, and was masturbating. She said, "Oh, God, no." In a voice that was firm and serious, he responded, "Oh, God, yes." She called for her lover. With coldness and calculation, he said, "He can't help you now." He then began to rape her. Percy Spence, who was one of her friends, walked in. He asked, "Are you having a date?" She yelled, "No, no[,] no, no, it's not." Defendant stated, "Yes, it is." Several times, she repeated, "No, it's not." Spence said, "Oh, man, don't be doing that," and ran out. When defendant was finished, he put into his pants a long knife in a sheath, which he had evidently brought to the scene. Anthony Simpkins, another of Sandra S.'s friends, had arrived by this time. As he was entering, he passed Spence. Simpkins asked, "[W]hat's happening[?]" Spence answered, "[O]h, just let it be." Sandra S. ran to Simpkins almost hysterical, and told him defendant had raped her. Defendant fled. As he did so, he proceeded up the street in the direction of Edwin Glidewell, with whom he was acquainted. Glidewell owned a 1975 Chevrolet Camaro, which was parked nearby with the key in the ignition. Defendant jumped into the driver's seat, started the engine, and took off. Glidewell gave chase, but failed in the effort.

On May 15, defendant met Ross as she was cashing a welfare check she had received earlier that day. With him at the wheel...