People v. Nieto
| Docket Number | A161996 |
| Decision Date | 29 June 2023 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. ALVARO NIETO, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED
(Alameda County Super. Ct. No. 19-CR-001995)
Defendant Alvaro Nieto appeals from a jury verdict finding him guilty of two counts of forcible rape (Pen. Code,[1] § 261, subd (a)(2)) and one count of second degree robbery (§ 211). On appeal, Nieto raises claims of error involving: (1) extensive prosecutorial misconduct; (2) unlawful pre-charging delay with respect to the rape of Jane Doe 1; (3) unconstitutional consolidation of the two separate rapes; (4) instructional error with respect to the use of propensity evidence; (5) insufficiency of the evidence supporting the kidnapping special circumstances involving Jane Doe 1; (6) the need to resentence due to several intervening changes in the law; (7) various sentencing and clerical errors; and (8) violation of the California Racial Justice Act of 2020 (Stats. 2020, ch. 317, § 1 (CRJA). We remand for resentencing and to correct clerical errors but otherwise affirm.
On September 29, 2020, the Alameda County District Attorney filed an amended information charging Nieto with two counts of forcible rape (§ 261, subd. (a)(2), counts one and two) and one count of second degree robbery (§ 211, count three). Each of the two rape counts was enhanced by allegations of kidnapping (§ 667.61, subds. (d)(2), (e)(1)) and multiple-victim provisions (§ 667.6, subds. (c), (e)(4)). The following evidence was adduced at trial:
A. Complaining Witnesses
Jane Doe 1 was in her early 20's in January of 2013. She was homeless, sometimes staying with her mother in Hayward or with aunts in San Leandro and Oakland. Around 7:00 p.m. on January 25, 2013, Jane Doe 1 was on her way to visit her aunt M.C. in Oakland. She took the bus from Hayward, but after she disembarked at International Boulevard, she became lost, and her phone died. Jane Doe 1 walked down the street trying to find the correct address. She passed various stores, including a chicken fast food restaurant, a liquor store, and a drugstore. She was scared because it was not a safe area, and her phone was not charged. Jane Doe 1 went into a mini mart to see if she could charge her phone, but they were unable to help her. She was not clear regarding all of the details and testified that she had always had a very bad memory. She acknowledged that she had taken four hits off a marijuana blunt sometime in the afternoon that day.
As Jane Doe 1 was walking down the street, she noticed a dark color car like a Buick. It passed her several times, which she felt was odd. When she crossed the street, the car pulled diagonally in front of her, cutting her off. The person inside stated that she looked lost. Jane Doe 1 responded that she was lost and needed a phone to call her aunt. The man stated he had a charger in the car and opened the passenger side door. He was heavyset, balding, and had a tattoo on his arm that said "Oakland" or "510" or something similar.[2]
At the time, Jane Doe 1 saw no harm in asking a stranger for help charging her phone. She leaned into the car looking for the charger. The man was holding onto the passenger car door, blocking her with his arm above her. He "nudged" her into the vehicle. She lost her balance and fell into the car. Jane Doe 1 looked at him like," 'What the fuck,'" and the man closed the car door. She did not want to get into the car. She was afraid. Her recollection was that she tried to get out of the car at that point, but she discovered that the passenger side door had no interior handle. The man told her he had a charger at home, and they drove for a few minutes, about 10 to 12 blocks. Although she was afraid, she acted calmly because she did not know what was going to happen.
When they arrived, he took her phone and told her he would charge it inside. She stood outside the car waiting, but the man came back outside and stated he could not get it to charge. Jane Doe 1 told him:" " When the man made no move to retrieve it, Jane Doe 1 went through the open side gate which the man had previously exited, intending to go get her phone.[3] She heard him behind her and he was blocking her exit, so she ran through the open side door of the house, through the kitchen where two people were located, and into another open door. That door led into a bedroom, and Jane Doe 1 saw here phone lying on the bed, "not even trying" to be charged.
Very quickly, the man came in after her, shut the door, and-as she was reaching down for her phone-pushed her powerfully onto the bed and stated: "You're not going anywhere." He started taking off her pants and underwear, and Jane Doe 1 was hitting him and telling him no, she just wanted to charge her phone. The man put his penis in her vagina while she was face down on the bed. He also groped her all over her body while restraining her with his hands and body. It hurt. She could not remember whether the man wore a condom or how long the assault lasted as she had "kind of blocked it out." She was thinking that she "just wanted to get out of there" and telling him:" " She never consented to the man having sex with her.
When the assault was over, Jane Doe 1 was able to get up and leave with her phone. She ran until she saw people on the street who could help her. An elderly black woman asked her if she was okay and showed her how to get to her aunt's house. When she arrived at M.C.'s house, she was still scared and shaken up, and she told her aunt what had happened. Although all she wanted to do was take a shower and get clean, her aunt told her not to until after they spoke to the police. Her clothes were put in a bag, and she identified pictures of the clothes and bag for the jury. Jane Doe 1 did not want to report the sexual assault to the police because she was scared and "didn't think anyone would care to help [her]." Where she was from, the police did not do anything to help, and she did not trust them.
Jane Doe 1 had very little memory of the next day. She remembered going to the doctor and having a long, uncomfortable exam.[4] In her statement to the police that day, she reported that she had gotten off the bus at the Coliseum BART station rather than International Boulevard. She also told the police that the man came up from behind her on International Boulevard, grabbed her around the waist, and sexually assaulted her in the back of the car, even though this was not true. She lied because she did not trust the police and she did not think they would believe her because she was stupid and went into someone's house that she did not know. Every day, she feels like it was her fault. She also told Mancuso, the SART examiner, that the rape happened in the back of the car.
After January 26, 2013-the day following the assault-Jane Doe 1 did not hear from the police again and assumed nothing was happening with her case. In the months after the assault, her life changed "dramatically." She started taking drugs to erase the pain and memory, it messed up her life, and she lost custody of her daughter. She had little contact with her family. Although she and M.C. used to be close, she no longer contacted her aunt because she reminded her of "being lost."
It was not until 2020, when the police contacted her, that Jane Doe 1 spoke to law enforcement again about her assault. She wanted to forget the incident; not relive it. Had she not been approached by the police she would have continued to "bury" the attack. The first time she met with the police in June 2020, she was not able to complete a statement about the incident because it was "too hard." She returned in July 2020 and was able to finish her statement with an advocate present. In June 2020, she told the police she did not remember how she got in the car but by July 2020 she reported she had been pushed. The July statement was the truth as she started remembering after giving the June statement. She was having nightmares, and everything was "coming back" to her. By September 2020, she first mentioned the assault had taken place in the house because, by then, she trusted the prosecutor would believe her. She did not know, and had never spoken to, Jane Doe 2.
On cross-examination, Jane Doe 1 denied she called Nieto the week after the assault to tell him she was taking a Greyhound bus from Oakland to Modesto. Nor did she meet him at the bus station with her daughter on February 5, 2013, smoke marijuana with him, or kiss him. She testified that she had never taken a Greyhound bus from Oakland to Modesto. She did not purchase the tickets with her name on them from February 2013 and 2015 that defense counsel presented to her and admitted into evidence.
On re-direct, Jane Doe 1 disclosed that, when defense counsel was going through her 2013 statement line by line and she repeatedly said it would not refresh her recollection to look at the statement, she was confused by the questions and "feeling attacked and not safe." When she feels attacked, she "kind of break[s] down a little and get[s] really emotional and silent." Jane Doe 1 also testified that she had lost her ID and social security card at some point in the past and had just gotten them replaced in 2018. She thought it "[m]ost likely" that someone who stole her ID purchased the tickets. When she went to her father's residence in Patterson, which is near Modesto, she would get a ride from her father.
Jane Doe 2 was 24 in September 2018. She was five feet, one inch tall and one hundred pounds. She had braces at the time. On Friday night September 28,...
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