Opinion
G058081
03-30-2021
THE PEOPLE, Plaintiff and Respondent, v. LUIS MIGUEL ALVARADO, Defendant and Appellant.
Rex Adam Williams, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Natasha Cortina and Melissa Mandel, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 18NF1174) OPINION Appeal from a judgment of the Superior Court of Orange County, Megan Wagner, Judge. Affirmed as modified, with directions. Rex Adam Williams, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Natasha Cortina and Melissa Mandel, Deputy Attorneys General, for Plaintiff and Respondent.
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A jury convicted Luis Miguel Alvarado of two counts of felony domestic violence (counts 1 and 5; Pen. Code, § 273.5, subd. (a)), one count of assault with a deadly weapon (count 2; § 245, subd. (a)(1), and two counts of felony false imprisonment (counts 3 and 4; §§ 236, 237, subd. (a)). The jury found enhancements applied to counts 1 and 5 for personal use of a deadly weapon (§ 12022, subd. (b)(1)) and to count 5 for inflicting great bodily injury on his victim (§ 12022.7, subd. (e)). In a bifurcated proceeding, the trial court found true the allegation that Alvarado suffered prior felony convictions, including a prior strike and a serious felony (§§ 667, subds. (a)(1), (d) & (e)(1)) and that he had served four prior prison terms (§ 667.5, subd. (b)). After striking one of the prison priors, the court sentenced Alvarado to an aggregate prison term of 25 years 4 months. The sentence included a consecutive year for each of the three remaining prison priors.
All further statutory references are to the Penal Code.
Alvarado challenges the sufficiency of the evidence to support the jury's verdict on count 3, specifically, that he used violence or menace to commit felony false imprisonment. He further contends the trial court erroneously failed to instruct the jury on misdemeanor false imprisonment as a lesser offense on that count. He also argues, as respondent concedes and we agree, that the prison prior terms must be stricken due to a retroactive change in legislation. We find no merit in Alvarado's other contentions. We therefore modify the judgment (§ 1260) to strike the prison prior findings and corresponding one-year sentence for each. In all other respects, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
About six months into his relationship with his eventual victim, Sarah, Alvarado began using methamphetamine with her. According to Sarah, he then became jealous, controlling, and violent.
Late in the evening on April 17, 2018, Alvarado drove Sarah's SUV to the house where he was staying. When he went inside to get some clothes, Sarah stayed in the car. After Alvarado returned and they drove away, he accused her of looking at his cell phone while he was gone. The couple argued, he pulled the vehicle over and began hitting her with a crescent wrench; he struck her on her head, ribs, and stomach. Sarah got the wrench away from him, but realized her head was bleeding "a lot."
Alvarado did not want to take Sarah to the hospital, but relented when she offered to say "'that a random person just hit me or threw something at me,' so I could get medical care." Medical personnel at the hospital closed the laceration with four or five staples and called the police. Alvarado stayed close to Sarah when the officers responded. Sarah stuck to her story that "some girl" had hit her with a wrench, and Alvarado avoided arrest at that time.
Over the next three days, Alvarado and Sarah used methamphetamine at various friends' homes. Sarah tried to leave Alvarado on multiple occasions, but he had her car, her purse, and her phone. He also struck her in the face or ribs to dissuade her.
On April 21st, in the middle of the night, Sara went to a friend's house "down the street." She returned within a few hours to retrieve her vehicle "or get [her] things out of the vehicle." She found Alvarado "burning [her] things in the alley [by] the Norms, the Norms restaurant right there." Sarah began walking to a bus stop, but Alvarado pulled up next to her and ordered her into the car. About two weeks earlier, the couple had been on a hilltop in Whittier. Sarah testified that Alvarado said "if we ever went back [to the hilltop], that's where he's going to kill me at." Once Sarah was in the vehicle, Alvarado drove to the hilltop.
He parked the car and began "putting inserts in the window," which were used "to block out sun or [keep] people [from] seeing in." Fearful that Alvarado was about to kill her, Sarah exited the vehicle and began to walk down the hill towards Whittier, barefoot and without her purse or phone. She headed at a brisk pace toward a populated "pull off" place where "there's trails or walking or bike-riding paths," but when "people started looking," Alvarado, who was following in her vehicle, made loud comments "like, '[t]his is why I don't like you drinking.'" He made it seem as if "[she] was being a crazy drunk person or something."
Alvarado promised not to hit Sarah if she got back into the vehicle. She believed him and returned to the car. But as soon as they "pulled out of the parking lot" to where "nobody could see us," Alvarado punched her hard in the face with his fist. The blow landed on Sarah's "eye/nose area" and, with her pain level at "an eight or nine" on a scale of ten, Sarah cried out for Alvarado to pull over. As he slowed down to between five and ten miles per hour to make a left turn, Sarah "tucked and rolled" out of the car, landing on a curb and suffering road rash on her lower back and feet. Her door hit a mailbox as she exited the vehicle.
Sarah stood and ran to the front door of a nearby house, yelling, '"Get away from me. Call 911."' She did not reach the door before Alvarado seized her and dragged her back to the vehicle. She could not recall if he had grabbed her in "a bear hug or . . . just yanked [her] back," but knew "it wasn't by my choice." Sarah felt defeated. She could not walk and did not attempt to jump out of the vehicle again.
The couple stayed at a Buena Park motel that night. Alvarado acted "fine" towards Sarah that evening and they smoked methamphetamine together. The next day, Alvarado began a new campaign of abuse. He dissuaded Sarah from leaving the room to get food, ordered her to return to the room when she left, and strangled her to unconsciousness when she attempted to leave again. When she awoke, he struck her in the eye with his closed fist, hit her in the ribs, and kicked her leg and torso area.
Alvarado ordered Sarah to remove her clothes to deter her from escaping; he then whipped her body with a purple strap that looked "like a phone charger cord." Sarah lay in a fetal position as he struck her in this manner "over 25 times." He then ordered her into the bathtub, where she could not lay on her back because of her injuries. He alternated running extreme hot and cold water on her, focusing the water on her lacerations. He ordered pizza, allowing Sarah to lay on the bed while he ordered, but he directed her back to the tub when the delivery arrived. He allowed her to come out to eat, applied cream to her back, and apologized to her.
Sarah fell asleep around midnight, but awoke to Alvarado inserting a syringe filled with liquid methamphetamine into her anus before having intercourse with her, which she was too "defeated and tired" to resist. They both fell asleep and when she awoke she obtained Alvarado's permission to use the bathroom. As she walked past a mirror she caught sight of her reflection. Shocked at the extent of her injuries, she concluded Alvarado would kill her if she did not escape.
Sarah dressed in the dark quietly to avoid waking Alvarado. She fled with her shoes in her hands, running to a nearby Denny's restaurant, where the police were summoned. Officers responded to the motel and contacted Alvarado. He deadbolted himself in the room before being forcibly removed through a window. After taking Alvarado into custody, the officers found a crescent wrench, a syringe, and a purple cord or cable in the room.
DISCUSSION
1. Count 3: Felony False Imprisonment
Alvarado challenges the sufficiency of the evidence to support the jury's conclusion on count 3 that he committed felony false imprisonment when he dragged Sarah back into the vehicle. Alternatively, he contends the trial court erred in not instructing the jury on misdemeanor false imprisonment as a potential lesser included offense on that count. Neither claim has merit.
"[R]eversal for insufficient evidence 'is unwarranted unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support"' the jury's verdict." (People v. Zamudio (2008) 43 Cal.4th 327, 357.) Substantial evidence consists of evidence that is reasonable, credible, and of solid value. (People v. Elliot (2005) 37 Cal.4th 453, 466.) We must view the evidence in the light most favorable to the judgment and make all reasonable inferences in support of the judgment. (People v. Crittenden (1994) 9 Cal.4th 83, 139.) It is the trier of fact's exclusive province to weigh witness credibility, resolve evidentiary conflicts, and determine what the evidence shows. (People v. Sanchez (2003) 113 Cal.App.4th 325, 330.) Consequently, a defendant attacking the sufficiency of the evidence "bears an enormous burden." (Ibid.)
"False imprisonment is the unlawful violation of the personal liberty of another." (§ 236.) A person "is restrained from his liberty [when] compelled to remain where he does not wish to remain, or to go where he does not wish to go . . . ." (People v. Ross (1988) 205 Cal.App.3d 1548, 1554.) The offense rises to the level of a felony when "effected by violence, menace, fraud, or deceit." (§ 237, italics added.) Because the statute is in the disjunctive, false imprisonment is a felony if committed using either violence or menace. (See ibid.)
"Force is an element of both felony and misdemeanor false imprisonment." (People v. Hendrix (1992) 8 Cal.App.4th 1458, 1462.) "[W]here the force used is greater than that reasonably necessary to effect the restraint" of the victim or to interfere with his or her liberty, "the force is defined as 'violence'" constituting felony false imprisonment. (Ibid.) "'Menace'" is defined as "'"'a threat of harm express or implied by word or act.'"'" (People v. Reed (2000) 78 Cal.App.4th 274, 280.)
Alvarado contends the evidence does not support the conclusion he used violence or menace to move Sarah back to the vehicle after she jumped out of it to escape him. He argues he "dragged her to the car. This establishes no more than the force necessary to complete the imprisonment." He adds, "There was no evidence he wielded a weapon," but a weapon is not necessary to constitute menace. "An express or implied threat of harm does not require the use of a deadly weapon or an express verbal threat to do additional harm." (People v. Aispuro (2007) 157 Cal.App.4th 1509, 1513 (Aispuro); see CALCRIM No. 1240.)
Alvarado overlooks the terrifying effect of his earlier actions, including driving Sarah to the spot he had threatened to kill her, pursuing her down the hill in his vehicle, and the blow to her face he inflicted after he lured her back into the car. "Threats can be exhibited in a myriad number of ways, verbally and by conduct." (Aispuro, supra, 157 Cal.App.4th at p. 1513.)
Viewed in the light most favorable to the judgment, the jury could reasonably infer that Alvarado's use of force to drag Sarah back to the car after she escaped amounted to an implied threat that he would hurt her there again, or take her somewhere else to hurt her. This implicit threat of harm was over and above the physical force necessary to move her. The jury could reasonably conclude this was no idle threat. Alvarado had just assaulted Sarah in what appeared to be an unfolding attempt to kill her. Indeed, she testified she "had so much adrenaline going on at the time [that], no, I don't recall exactly how I got back to the car. But I know it wasn't by my choice." "[A] jury properly may consider a victim's fear in determining whether the defendant expressly or impliedly threatened harm." (People v. Islas (2012) 210 Cal.App.4th 116, 127.) Substantial evidence supports the judgment.
Alvarado's instructional argument also fails.
In a criminal case, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. (People v. Breverman (1998) 19 Cal.4th 142, 154.) The court has a sua sponte duty to instruct the jury on all theories of a lesser included offense that find substantial support in the evidence. "Substantial evidence in this context is evidence from which a reasonable jury could conclude that the defendant committed the lesser, but not the greater, offense." (People v. Shockley (2013) 58 Cal.4th 400, 403.)
Here, on count 3 the trial court included an instruction on attempted felony false imprisonment as a lesser included offense, but not misdemeanor false imprisonment. In reviewing the instructions before giving them to the jury, the court agreed with the prosecutor that the misdemeanor instruction was not warranted. The court explained that the evidence showed no middle ground between felony false imprisonment and acquittal. The evidence indicated either a felony was committed "if the jury were to believe it" or, if the jury did not believe Sarah's testimony, "no false imprisonment" at all. We agree with the trial court's assessment.
We review claims of instructional error de novo. (People v. Nelson (2016) 1 Cal.5th 513, 538; People v. Shaw (2002) 97 Cal.App.4th 833, 838.) The state law standard for harmless error applies to instructional error. "Reversal is required only if it is reasonably probable the jury would have returned a different verdict absent the error or errors complained of." (People v. Rogers (2006) 39 Cal.4th 826, 868.)
Alvarado asserts evidence of "simple false imprisonment . . . was at least as substantial as evidence he did use violence or menace to effectuate the restraint." He suggests, for example, that he "had no reason to resort to violence or menace beyond that necessary to commit the misdemeanor offense."
To the contrary, just after Alvarado persuaded Sarah to get back into the vehicle earlier in the evening, he punched her in the face. It was therefore unlikely Alvarado would be successful in getting Sarah back into the car absent violence or menace, provided the jury believed Sarah's account of the earlier events.
Alvarado testified in his own defense. He denied Sarah's account in every respect. He did not burn her clothes in the alley; he did not drive her into the hills; he never threatened to kill her there; and he never dragged her back to the car. As the trial court aptly summarized, nothing in the evidence indicated misdemeanor conduct related to count 3—the jury would either believe Sarah's testimony or his.
Alvarado's reliance on cases like People v. Babich (1993) 14 Cal.App.4th 801 is misplaced. There, the victim testified the defendant used a knife and threatened to kill her when he falsely imprisoned her, but also that he hid the knife and held her against her will with both his arms when others entered the room. No knife was found. (Id. at pp. 804-805.)
Here, there is no similar evidentiary basis for a misdemeanor false imprisonment instruction on grounds that the jury might credit the victim's testimony in part (use of force to hold her), but not in others (alleged use of a knife). The jury credited Sarah's testimony when it convicted Alvarado on all counts. Given all the foregoing circumstances, it is not reasonably probable that the jury would have returned a different verdict if the trial court had given a misdemeanor false imprisonment instruction on count 3. Any conceivable error was therefore harmless and furnishes no basis for reversal.
2. Prior Prison Term Enhancements
Alvarado and respondent agree that the three prior prison term enhancements the trial court imposed must be stricken. Section 667.5, subdivision (b), was amended after Alvarado's sentencing hearing to provide that one-year prior prison term enhancements are limited to cases where the prior was for "a sexually violent offense as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code." (Senate Bill No. 136 (2019-2020 Reg. Sess.) ch. 590, § 1; People v. Winn (2020) 44 Cal.App.5th 859, 872.) This change, effective January 1, 2020, is retroactive. (Winn, at p. 872.) Alvarado's prior prison terms were not for a sexually violent offense, but instead for auto thefts and a criminal threat conviction. Therefore, the prior prison term enhancements had no legal foundation after the law changed. Respondent does not suggest resentencing is necessary for any reason.
DISPOSITION
We modify (see § 1260) Alvarado's sentence by striking the three section 667.5, subdivision (b), one-year prior prison term enhancements that the trial court imposed. So modified, the judgment is affirmed in all other respects. The trial court is directed to prepare an amended abstract of judgment reflecting the above modifications and forward a certified copy to the Department of Corrections and Rehabilitation.
GOETHALS, J. WE CONCUR: BEDSWORTH, ACTING P. J. IKOLA, J.