Opinion
H049722
09-06-2024
THE PEOPLE, Plaintiff and Respondent, v. DANIEL EDUARDO ALVAREZ, Defendant and Appellant.
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. B1900040.
BROMBERG, J.
Daniel Eduardo Alvarez was convicted, after a short jury trial, of assault with intent to commit a felony (rape), false imprisonment, and criminal threats. He was sentenced to four years in prison for the assault and to concurrent sentences for false imprisonment and criminal threats. Alvarez challenges his convictions and argues in the alternative that the sentences for false imprisonment and criminal threats should have been stayed under Penal Code section 654. (Subsequent undesignated statutory citations are to the Penal Code.) We reject Alvarez's challenges to his convictions but agree that his sentence was improper. Accordingly, we reverse the judgment and remand for resentencing.
I. Background
A. The Assault
Late in the evening on December 28, 2018, Jane Doe went to a bar in Palo Alto with her boyfriend and a friend. Around 1:00 or 1:30 a.m., as the bar was closing, the three left, and Doe went to a grocery store. After also getting some gas, she went to her boyfriend's apartment but no parking spots were available nearby, so she parked on another street. As she walked to the building, she called her boyfriend to tell him she was approaching.
As Doe reached the apartment building, a man grabbed her from behind and threw her to the ground. The man mounted on top of her, straddled her arms with his legs, and groped her vagina and breasts. The man also told Doe "[i]f you scream I'll hurt you."
But Doe screamed, and her boyfriend heard her. After running down the stairs, the boyfriend banged on the apartment building's windows, scaring the man away, and chased the man to his car. The man drove away as a police car arrived.
Cameras in the apartment building, in the lot where the man parked, and on the patrol car captured these events.
B. Alvarez's Arrest and Seizure of His Cell Phone
Based on the color and make of the vehicle driven from the crime scene, which the police car recorded, and a partial license plate number that the boyfriend caught, the police identified Alvarez as the vehicle's user. The police then obtained an arrest warrant for Alvarez, which they executed on January 2, 2019.
While Alvarez was being arrested, one of the officers at the scene spoke with Alvarez's mother. The officer learned that the mother lived with Alvarez, and she granted the officer permission to enter their room. Inside the room the officer saw a wallet and a cell phone on a mattress on top of some clothing. After learning from the mother that both belonged to Alvarez, the officer took the wallet and the cell phone.
Later that day, the police interviewed Alvarez. After Alvarez was read his Miranda rights, a detective encouraged him to write an apology. Alvarez agreed and handwrote a note to Doe "to apologize for touching you inappropriately Friday night."
Three weeks later, the police obtained a warrant to search Alvarez's cell phone. The police extracted location information showing that on the morning of the assault, between 3:00 a.m. and 3:30 a.m. when it occurred, Alvarez was near the scene of the crime. The police also recovered Alvarez's web browsing history from the month before the assault and later on the day of the assault.
C. The Proceedings Below
1. The Information
On January 15, 2020, an information charged Alvarez with four offenses: (1) assault with an intent to commit a felony (rape) under section 220, subdivision (a)(1); (2) false imprisonment under section 236; (3) threats to commit a crime resulting in death or great bodily injury under section422, subdivision (a); and (4) assault with a deadly weapon under section 245, subdivision (a)(1).
2. The Marsden Hearings
In April 2021, Alvarez asked that his appointed counsel be replaced. Pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden), the trial court held a closed hearing without the prosecutor and asked Alvarez to explain his concerns. Alvarez asserted that his appointed counsel had conducted an inadequate investigation, communicating with him only three times, not talking with his family, and failing to gather evidence. Alvarez also complained that counsel was refusing to file a section 995 motion to dismiss the information or a section 1538.5 motion to suppress the evidence taken from his cell phone.
In response, counsel told the trial court that he had been a public defender for over two decades and handled approximately 500 cases involving serious felonies, including homicides. Counsel also told the court that he had not failed to investigate the case, noting in particular that he had interviewed seven witnesses and talked to Alvarez's sister. Counsel said as well that he had tried to convince Alvarez where his best interest lay, even enlisting a more senior colleague to speak with him, but had been unable to persuade Alvarez. Finally, counsel informed the court that he had reviewed the preliminary hearing transcript but saw no basis for a section 995 motion and likewise saw no basis for a section 1538.5 motion. The trial court denied Alvarez's motion.
After Alvarez renewed his request for new appointed counsel before trial, the trial court held another closed hearing. In the hearing, Alvarez explained that, based on his personal research, he believed that section 995 and 1538.5 motions should be filed. Counsel responded that he did not believe there was any viable motion under those sections. Observing that attorneys are under an obligation to file only motions they believe meritorious, the trial court once again found no grounds for appointing new counsel.
3. The Motion in Limine
Before trial, the prosecutor filed a motion in limine to admit evidence obtained from Alvarez's cell phone. Among other things, the prosecutor sought to admit evidence showing that on the morning of the assault Alvarez searched for information about" 'a woman assaulted in Palo Alto last night.'" Even more important for this appeal, the prosecutor sought to admit spreadsheets showing Alvarez's browsing history on November 24, 2018 and November 28, 2018, about a month before the assault. These spreadsheets showed that Alvarez had visited websites concerning "stranger rape" and browsed newspaper articles with titles such as "Teen Gang-Raped After Walking Through the Woods," "Girl Gets Raped While Jogging in California," and "Modesto Teen Jogger Abducted at Gunpoint and Raped in Broad Daylight." The prosecutor argued that the spreadsheets were relevant to Alvarez's intent in assaulting Jane Doe and that they were not unduly prejudicial, especially in light of the video of the assault, which he termed "absolutely horrifi[c]."
The trial court granted the motion in limine. The court noted that the evidence of Alvarez's searches on the day of the assault was relevant to identity as well as consciousness of guilt and not unduly prejudicial. It also found that evidence of Alvarez's earlier searches was relevant to the issues of intent and motive because the searches showed an interest in stranger rape and that the probative value of the evidence outweighed its potential prejudice.
A week later, before the commencement of trial, the trial court elaborated on its reasoning. It explained that under Evidence Code section 1101, subdivision (b) Alvarez's browsing history provided permissible evidence of motive and intent because it showed a sexual attraction to rape upon which the jury could infer that Alvarez intended to act in assaulting Jane Doe The court also found that the browsing history had only limited prejudicial effect because the spreadsheets that the prosecution sought to admit referred to websites and articles without providing photos, videos, or text, and that this prejudicial effect was outweighed by the spreadsheets' probative value.
4. Trial and Sentencing
After the prosecutor voluntarily dismissed the assault with a deadly weapon charge for insufficiency of evidence, the case went to trial on the three remaining charges: assault with intent to commit rape, false imprisonment, and criminal threats. The prosecutor took only two days to present his evidence, and the defense rested without presenting any evidence.
The prosecutor presented testimony from Jane Doe and her boyfriend concerning the assault. The prosecutor also submitted into evidence videos of the assault and Alvarez's apology note. In addition, the prosecutor presented the spreadsheets containing Alvarez's browsing history and discussed them at length in closing argument. And a prosecution witness testified that GPS data from the cell phone showed that Alvarez was near the scene of the assault when it occurred.
The jury deliberated for an hour before returning guilty verdicts on all three counts. The trial court sentenced Alvarez to four years in state prison for assault with intent to rape and concurrent terms of two years for false imprisonment and criminal threats. On the day that the sentence was imposed, Alvarez filed a notice of appeal.
II. Discussion
A. Seizure of Alvarez's Cell Phone
Alvarez argues that he received ineffective assistance because his trial counsel did not move to suppress the evidence found on his cell phone. According to Alvarez, this evidence should have been excluded because the cell phone was unlawfully seized. We disagree. Although the police seized Alvarez's cell phone without a warrant, his mother consented to the search of the apartment that they shared, the cell phone was in plain sight there, and it was immediately apparent that the cell phone was likely to contain incriminating evidence concerning Alvarez's location at the time of the assault on Doe. As a consequence, the "plain view" exception applies, and the cell phone was lawfully seized.
The Fourth Amendment to the United States Constitution prohibits "unreasonable searches and seizures" and requires that warrants issue only "upon probable cause" and "particularly describ[e] the place to be searched, and the persons or things to be seized." (U.S. Const., 4th Amend; see also People v. Troyer (2011) 51 Cal.4th 599, 605 ["In California, issues relating to the suppression of evidence derived from governmental searches and seizures are reviewed under federal constitutional standards."].) "In general, a law enforcement officer is required to obtain a warrant before conducting a search," and "[w]arrantless searches 'are per se unreasonable under the Fourth Amendment-subject only to a few specially established and well-delineated exceptions.' [Citation.]" (People v. Lopez (2019) 8 Cal.5th 353, 359.)
One such exception is the plain-view doctrine. (Horton v. California (1990) 496 U.S. 128, 133 (Horton); Coolidge v. New Hampshire (1971) 403 U.S. 443, 465.)" 'It is well established that under certain circumstances the police may seize evidence in plain view without a warrant.'" (Horton, supra, at p. 134.) This exception has three requirements. First, it is "an essential predicate" that the officer viewing the evidence "did not violate the Fourth Amendment in arriving at the place from which the evidence could be plainly viewed." (Id. at p. 136.) Second, the potentially incriminating character of the evidence must be" 'immediately apparent.'" (Ibid.) Third, the officer viewing the evidence must have "a lawful right of access to the object itself." (Id. at p. 137, fn. omitted.) These requirements were satisfied here.
The first and third requirements were satisfied because Alvarez's mother consented to the police's search of the room she shared with Alvarez. The police arrested Alvarez pursuant to an arrest warrant at his residence. When they did so, an officer learned that Alvarez's mother lived with her son, and she granted permission to search the room that they shared, where the officer saw Alvarez's cell phone on top of a pile of clothing. As a cohabitant of the room, Alvarez's mother had authority to consent to a search of the room, and the Fourth Amendment permitted the officer to search it with her consent. (See, e.g., People v. Woods (1999) 21 Cal.4th 668, 675-676.) As a consequence, when the police officer saw Alvarez's cell phone in the room, he was in compliance with the Fourth Amendment and had a lawful right to access the cell phone- thereby satisfying the first and third requirements of the plain-view doctrine.
The final requirement-that the potentially incriminating nature of the cell phone was immediately apparent-also was satisfied. As a recent decision observed, it is "a matter of indisputable common knowledge that most people carry cell phones virtually all the time ...." (Price v. Superior Court (2023) 93 Cal.App.5th 13, 39 (Price); see also Carpenter v. United States (2018) 585 U.S. 296, 311 ["[I]ndividuals . . . compulsively carry cell phones with them all the time"); Riley v. California (2014) 573 U.S. 373, 395 (Riley) [noting Harris poll showing that "nearly three-quarters of smart phone users report being within five feet of their phones most of the time"].) In addition, "[h]istoric location information is a standard feature on many smart phones and can reconstruct someone's specific movements down to the minute, not only around town but also within a particular building." (Riley, supra, at p. 396; see also Price, supra, at p. 39 [noting that any smart phone using Google's Android operating system, using a Google application, or having a Google account will provide location information Google obtains and retains].) Consequently, if Alvarez assaulted Jane Doe-and the warrant for his arrest showed that there was probable cause to believe he did-there was obvious reason to expect that he was carrying his cell phone when he did and the cell phone would contain potentially incriminating evidence concerning his presence at the scene of the crime- which, in fact, it did.
Because we conclude that Alvarez's cell phone was likely to contain incriminating information concerning his location, we do not reach the Attorney General's unexplained assertion that it was immediately apparent the cell phone would contain incriminating evidence concerning his browsing history.
Based on such considerations, courts repeatedly have found probable cause for "geofence" warrants seeking cell phone location information concerning presence at crime scenes. (Price, supra, 93 Cal.App.5th at pp. 22, 40 [finding "fair probability that (1) the suspects were carrying cell phones, (2) the phones used Google information, and, therefore, (3) Google would have location data and identifying information revealing the suspects' identities"]); People v. Meza (2023) 90 Cal.App.5th 520, 536-537 (Meza) [finding fair probability that cell phone location history would reveal identity of potential suspect]; see also United States v. James (8th Cir. 2021) 3 F.4th 1102, 1105 (James); Matter of Search of Information that is Stored at Premises Controlled by Google LLC (D.D.C. 2021) 579 F.Supp.3d 62, 77-80; Matter of Search Warrant Application for Geofence Location Data Stored at Google (N.D. Ill. 2020) 497 F.Supp.3d 345, 356 (Geofence Location Data Application).)
Alvarez argues that the police officer who seized his cell phone lacked probable cause to believe that the cell phone contained evidence of the crime or that it was used in committing the crime. That may be true. However, the incriminating nature of Alvarez's cell phone was not immediately apparent because it was likely to contain evidence of the crime or likely was used in the crime; the incriminating nature of the cell phone was immediately apparent because it was likely to contain evidence concerning Alvarez's presence at the scene of the crime. Accordingly, courts have found probable cause to search cell phone location data absent evidence that cell phones were used in committing a crime. (Price, supra, 93 Cal.App.5th at p. 40; Geofence Location Data Application, supra, 497 F.Supp.3d at pp. 355-356, 363.)
Alvarez also argues that there was no evidence that he had his cell phone with him when he allegedly assaulted Jane Doe. While that is correct, as explained above, it is common knowledge that most people carry their cell phones with them virtually all the time. (Price, supra, 93 Cal.App.4th at p. 39.) Accordingly, courts have found probable cause to search cell phone records without specific evidence that a suspect had a cell phone with him or her. (See James, supra, 3 F.4th at p. 1105; Geofence Location Data Application, supra, 497 F.Supp.3d at pp. 355-356, 363.)
Finally, Alvarez argues that in light of the immense storage capacity of cell phones as well as the sensitive and highly personal information stored in them, the Fourth Amendment should be strictly applied to cell phones. We agree. However, strict adherence to the Fourth Amendment does not require us to ignore the likelihood that cell phones contain location information concerning the presence of suspects at the scene of a crime. Instead, courts must strictly enforce other aspects of the Fourth Amendment. For example, far from assuming that all cell phones contain incriminating information, courts must require government officers seeking a warrant for cell phone information to show a fair probability that the individual whose cell phone data is sought was involved in the crime being investigated. And, where such a showing has been made, courts must limit warrants to location information relating to the scene of the crime and other likely incriminating information rather than authorizing unrestricted searches of cell phones. (See Meza, supra, 90 Cal.App.5th at pp. 537-539 [finding that warrant for cell phone location data, though supported by probable cause, was overbroad and failed to describe the information sought with adequate particularity].)
Here, however, there was evidence that Alvarez committed a crime and good reason to believe his cell phone would contain incriminating information concerning his presence at the scene of the crime, and the police did not search the phone until they had sought and received a warrant authorizing them to do so. Under these circumstances, the seizure of Alvarez's cell phone was appropriate under the plain-view doctrine. As counsel are not required to bring meritless motions, Alvarez's counsel was not ineffective in failing to move to suppress evidence derived from the seizure. (People v. Price (1991) 1 Cal.4th 324, 387 ["Counsel does not render ineffective assistance by failing to make motions or objections that counsel reasonably determine would be futile."].)
B. Marsden
Alvarez also challenges his convictions on the ground that the trial court should have replaced his appointed counsel. However, "[t]he decision whether to grant a requested substitution is within the discretion of the trial court" and reviewed for abuse of discretion. (People v. Abilez (2007) 41 Cal.4th 472, 488 (Abilez).) As explained below, we conclude that there was no abuse.
Under both the Sixth Amendment to the United States Constitution and article I, section 15 of the California Constitution, criminal defendants are "entitled . . . to the assistance of court-appointed counsel if they are unable to employ private counsel." (Marsden, supra, 2 Cal.3d at p. 123; see People v. Staten (2000) 24 Cal.4th 434, 450 (Staten).) In addition, criminal defendants are entitled" 'not to some bare assistance but rather to effective assistance.'" (Staten, supra, at p. 450, italics in original.) However, "a defendant has no absolute right to more than one appointed attorney." (Marsden, supra, at p. 123.) To the contrary, a defendant is not entitled to new counsel simply because he has lost trust in, or is unable to get along with, appointed counsel. (People v. Clark (2011) 52 Cal.4th 856, 918; People v. Memro (1995) 11 Cal.4th 786, 857 (Memro).) Nor is a disagreement over tactics enough. (People v. Rodriguez (2014) 58 Cal.4th 587, 624.) A defendant is entitled to new appointed counsel if, and only if, "the defendant has shown that a failure to replace the appointed attorney would substantially impair the right to the assistance of counsel." (People v. Smith (1993) 6 Cal.4th 684, 696 (Smith).) Thus, new counsel should be appointed"' "if the record clearly shows that the first appointed attorney is not providing adequate representation or that the defendant and the attorney have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result."' [Citation.]" (Abilez, supra, 41 Cal.4th at p. 488.)
Alvarez failed to make this showing. Alvarez does not contend that he had a conflict with his appointed counsel so irreconcilable that ineffective assistance was likely to result. In addition, in light of our conclusion that Alvarez's cell phone was properly seized, he cannot show that his appointed counsel provided ineffective assistance by not moving to suppress evidence derived from that seizure. Alvarez contends that the trial court abused its discretion by failing to inquire into whether trial counsel adequately investigated bringing pre-trial motions. However, a Marsden hearing is an" 'informal hearing'" and" 'not a full-blown adversarial proceeding.'" (People v. Alfaro (2007) 41 Cal.4th 1277, 1320). Here, the trial court held two hearings in which it allowed Alvarez to explain why he believed his trial counsel's performance was deficient and permitted counsel to respond. As the Supreme Court has repeatedly indicated, that is normally a sufficient inquiry. (People v. Rodriguez (2014) 58 Cal.4th 587, 623; Abilez, supra, 41 Cal.4th at p. 488; Smith, supra, 30 Cal.4th at p. 606.) Moreover, the trial court was entitled to credit counsel's testimony that he had reviewed the preliminary hearing transcript and determined that Alvarez had no viable basis for moving to suppress evidence or to dismiss the information. (See Abilez, supra, at p. 489 ["' "[T]o the extent there was a credibility question between defendant and counsel at the hearing, the court was 'entitled to accept counsel's explanation.'" '" [Citation.]"].)
Pointing to the prosecutor's eventual dismissal of the assault with a deadly weapon charge for insufficiency of evidence, Alvarez asserts that his trial counsel should have filed a section 995 motion. However, to prevail on a section 995 motion and dismiss an information or indictment, a defendant cannot merely show that the evidence presented at the preliminary hearing was insufficient to support a conviction. Instead," 'the defendant must establish that he was "committed without reasonable or probable cause." '" (Menifee v. Superior Court of Santa Clara County (2020) 57 Cal.App.5th 343, 358-359.) "This is an 'exceedingly low' standard," and"' "[e]vidence that will justify a prosecution need not be sufficient to support a conviction. [Citations.]" '" (Id. at p. 359.) Consequently, the prosecutor's dismissal of the assault charge does not show that a section 995 motion should have been filed.
We conclude that the trial court did not abuse its discretion in denying Alvarez's Marsden motions.
C. Admission of Web Browsing History
Alvarez challenges the admission of the spreadsheets recounting his web browsing history and revealing his interest in stranger rape on the grounds that this history was irrelevant and unduly prejudicial. Reviewing the admission of this evidence for abuse of discretion (see, e.g., People v. Ayala (2000) 24 Cal.4th 243, 282), we conclude that the spreadsheets were properly admitted.
1. Propensity and Relevance
Alvarez contends that the prosecutor used the spreadsheets to show that he acted in conformity with his past browsing history and therefore the spreadsheets were a form of character or propensity evidence barred by Evidence Code section 1101, subdivision (a). The Attorney General denies that the spreadsheets were character or propensity evidence but argues that, in any event, the spreadsheets were properly admitted because they were relevant to proving Alvarez's motive and intent. We agree that the spreadsheets were relevant to proving intent.
As Alvarez points out, Anglo-American courts have long excluded evidence of criminal propensity because of the temptation to allow such evidence" 'to bear too strongly on the present charge, or to take the proof of it as justifying a condemnation irrespective of guilt of the present charge.' [Citation.]" (People v. Alcala (1984) 36 Cal.3d 604, 631.) This principle is codified in section 1101 of the Evidence Code, which states that "evidence of a person's character or a trait of his or her character . . . is inadmissible when offered to prove his or her conduct on a specific occasion." (Evid. Code, § 1101, subd. (a).) However, Evidence Code section 1101 also recognizes that evidence of prior crimes may be used to prove, among other things, intent: "Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to some fact . . . such as . . . intent . . . other than his or her disposition to commit such an act." (Evid. Code, § 1101, subd. (b).)
The spreadsheets presented by the prosecutor in this case fall squarely within this latter provision because Alvarez's browsing history was probative of his intent in assaulting Doe. Alvarez was charged with assault with intent to commit, among other things, rape. Doe testified that, before her boyfriend arrived and chased Alvarez away, Alvarez threw her to the ground, mounted on top of her, straddled her arms with his legs, and groped her vagina and breasts. Although the spreadsheets themselves are not in the record on appeal, according to other evidence in the record, the spreadsheets demonstrated that a month before this attack Alvarez had been visiting websites concerning stranger rape and browsing newspaper articles with titles such as "Teen Gang-Raped While Walking Through the Woods" and "Girl Gets Raped While Jogging in California." Consequently, the trial court reasonably concluded that Alvarez's browsing history showed a strong interest in rape and that this evidence was relevant because a jury could infer that he was acting on that interest in assaulting Doe.
Other newspaper article examined by Alvarez were entitled "Modesto Teenager Abducted at Gunpoint, Raped in Broad Daylight," "Woman Gets Raped While Jog[ging]," "New York Suspect Who Dragged Jogger by the Hair, Raped, Robbed Her," "Man Charged with Rape of Kings Park Jogger," "Woman Says She Was Raped While Jogging in Fayettteville," "Uncensored Pictures of Girls Gang Raped on Facebook," "Egyptian Girl Raped During the Inauguration Ceremony of President Sisi," "Girl Raped after College Party," and "What Science Says About Arousal During Rape."
Other courts have recognized the relevance of such evidence. For example, in Memro, supra, 11 Cal.4th 786, the defendant was charged with committing felony murder by strangling a seven-year-old boy to death while committing a lewd act with the boy. (Id. at pp. 811, 815.) To prove that the defendant intended to perform a lewd act on the boy, the prosecution submitted evidence of sexually explicit magazines featuring young men and boys as well as photographs of young boys, many unclothed. (Id. at pp. 814, 864.) Much like Alvarez, the defendant in Memro argued that the magazines and photographs were impermissible character evidence. (Id. at p. 864.) Disagreeing, the Supreme Court held that the magazines were admissible to show an intent to molest the boy because a jury could infer from them that the defendant "had a sexual attraction to young boys and intended to act on that attraction." (Id. at p. 865; see also People v. Byers (2021) 61 Cal.App.5th 447, 451, 454-455 [holding evidence of pornographic videos watched by defendant admissible to show intent to commit rape in molesting victim].)
Alvarez tries to distinguish Memro on the ground that in that case there was evidence that the defendant acted on his sexual interest in young boys by luring the victim to his home and attempting to sodomize him. By contrast, Alvarez asserts, there is no evidence in this case suggesting an attempt to rape Doe. We disagree. Doe testified that Alvarez pushed her to the ground, mounted on top of her, and began groping her breasts and vagina. This conduct suggests that Alvarez was preparing to rape Doe, which makes his interest in violent rapes relevant to his intentions.
Ignoring this evidence, Alvarez notes a number of things that he did not do- remove Doe's clothing, remove his clothing, expose himself, or take Doe to a more secluded area-and argues based on their absence that he was not trying to rape Doe. But there is a simple explanation for why Doe did not do any of these things: He did not have the time to do them because he was interrupted almost immediately. Before Doe approached her boyfriend's apartment building, she called him to let her in. In addition, shortly after Alvarez mounted and began to grope her, Doe screamed, her boyfriend ran down the stairs, and he scared Alvarez off. Thus, Alvarez is not exonerated by the fact that he did not remove Doe's clothing or take the other actions he lists.
For similar reasons, Alvarez's reliance on People v. Guerrero (1976) 16 Cal.3d 719 is misplaced. In Guerrero the Supreme Court held that evidence of a prior rape was improperly admitted because there was "no evidence whatsoever of sexual intercourse or attempted sexual intercourse" upon which the prior rape might shed light, merely evidence that the murder victim's blouse was "in disarray." (Id. at p. 727.) Here, by contrast, there was evidence that Alvarez was preparing to rape Doe, as discussed above. People v. Page (2008) 44 Cal.4th 1 does not help Alvarez either. In that case the Supreme Court questioned the probative value of pornographic images viewed by the defendant because the acts portrayed in those images were dissimilar to the assault at issue. (Id. at pp. 40-41.) Here, however, the type of conduct for which Alvarez was searching-the rape of woman while walking or jogging-was similar to the attack on Doe.
As a consequence, we conclude that the trial court did not abuse its discretion in finding Doe's browsing history relevant to Alvarez's intent and admissible under subdivision (b) of Evidence Code section 1101.
Alvarez also argues, albeit in passing, that the spreadsheets detailing his web browsing history were inadmissible under Evidence Code section 352 because the probative value of this evidence was substantially outweighed by the danger of prejudice. In particular, Alvarez contends that the evidence of his interest in rape demonstrated "bad moral character," which created a danger that the jury would punish him for that character. However, Evidence Code section 352 permits a court to exclude evidence only "if its probative value is substantially outweighed by the probability that its admission will . . . create substantial danger of undue prejudice" (italics added), and the trial court found only a limited danger. This finding is well grounded. The prosecutor did not show the jury the sites or articles that Alvarez browsed, only a spreadsheet with their titles. In addition, as the prosecutor noted, Alvarez was caught on video doing something much more inflammatory than browsing articles about rape: He was shown viciously assaulting a woman. As a consequence, the trial court did not abuse its discretion in finding a minimal danger that the jury would punish defendant for the much less inflammatory conduct evidenced by his web browsing history. (See, e.g., People v. Rucker (2005) 126 Cal.App.4th 1107, 1119 ["Relevant factors in determining prejudice include whether the prior acts of domestic violence were more inflammatory than the charged conduct . . . ."].)
D. Section 654
Alvarez was sentenced to four years in prison for assault with intent to commit rape and to multiple concurrent terms for false imprisonment and criminal threats. Alvarez contends that his convictions for false imprisonment and criminal threats should have been stayed under section 654 because they arise out of the same acts or course of conduct underlying his assault conviction. The Attorney General concedes that Alvarez's conviction for false imprisonment should be stayed, but argues that his conviction for criminal threats should not. We agree with the Attorney General that the false imprisonment conviction should be stayed, but conclude that the criminal threats conviction should be stayed as well.
Section 654 provides that "[a]n act or omission that is punishable in different ways by different provisions of law" may be punished under one provision "but in no case shall the act or omission be punished under more than one provision." (§ 654, subd. (a).)Under this section, "an 'act or omission' may include not only a discrete physical act but also a course of conduct encompassing several acts pursued with a single objective." (People v. Corpening (2016) 2 Cal.5th 307, 311).) In applying section 654, courts employ a two-step inquiry. First, courts "consider if the different crimes were completed by a 'single physical act'" and, if so, may impose punishment for only one crime. (Ibid.) If the case involves a course of conduct, courts consider whether that course of conduct is divisible and, in particular, whether it "reflects a single 'intent and objective' or multiple intents and objectives." (Ibid.) "[I]f all the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once." (People v. Harrison (1989) 48 Cal.3d 321, 335.) Whether express or implied, a determination that the defendant harbored a single intent-and thus a single objective-for a course of conduct is factual in nature and reviewed for substantial evidence. (People v. Brents (2012) 53 Cal.4th 599, 618.)
In 2021, when Alvarez was sentenced, section 654 provided for punishment under the longest provision available: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest term of imprisonment, but in no case shall the act or omission be punished under more than one provision." (Former § 654.) Effective January 1, 2022, section 654 was amended to provide that an act or omission punishable under two different provisions "may be punished under either of such provisions." (§ 654, subd. (a); see People v. Sek (2022) 74 Cal.App.5th 657, 673.)
As both parties have recognized, section 654 applies to Alvarez's false imprisonment conviction because that conviction is based on the same acts as his conviction for assault. To prove the assault charge, the prosecutor had to show that Alvarez committed an "act that . . . would directly and probably result in the application of force to a person." To prove the false imprisonment charge, the prosecutor had to show that Alvarez restrained Doe by violence or menace. The prosecutor argued that both requirements were satisfied by the evidence that Alvarez tackled Doe and pinned her to the ground. Consequently, Alvarez's assault and false imprisonment convictions were based on the same conduct, and section 654 requires that one of the convictions be stayed.
Section 654 also applies to Alvarez's conviction for making a criminal threat because his threat to harm Doe was part of the same indivisible course of conduct as the assault on her. After Alvarez threw Doe onto the ground and mounted her, he threatened that he would hurt her if she screamed. Consequently, the threat was simultaneous with the assault. In addition, the evident purpose of the threat was to facilitate the rape that Alvarez attempted to commit by preventing intervention by others. Indeed, when Doe screamed, Alvarez did not carry out his threat-which confirms he was not interested in preventing screaming for its own sake-and he was prevented from raping Doe because her screaming attracted her boyfriend. We therefore conclude that Alvarez's threat was" 'a means toward the objective of the commission'" of the assault and therefore indivisible from that offense. (People v. Britt (2004) 32 Cal.4th 944, 954; see also People v. Wynn (2010) 184 Cal.App.4th 1210, 1214-1214 ["Where the commission of one offense is merely' "a means toward the objective of the commission of the other,"' section 654 prohibits separate punishments for the two offenses."].)
The Attorney General acknowledges that Alvarez threatened Doe for the purpose of facilitating her rape. Nevertheless, the Attorney General argues that Alvarez's threat is divisible from his assault on Doe because a criminal threat involves an act not required for assault with intent to rape (the threat) and the threat here had another purpose: concealing the crime and escaping detection. However, the objectives of concealing the crime and escaping detection are incidental to the crime itself and therefore do not justify treating Alvarez's threat to harm Doe as divisible from his assault on her. (People v. Beamon (1973) 8 Cal.3d 625, 639, fn. omitted ["The court has thus construed section 654 to be applicable to limit punishment for multiple convictions arising out of . . . a course of conduct deemed to be individual in time, in those instances wherein the accused entertained a principal objective to which other objectives, if any, were merely incidental."].)
Nor do the cases cited by the Attorney General suggest otherwise. The Attorney General points to People v. Mejia (2017) 9 Cal.App.5th 1036 (Mejia), noting that the decision found the criminal threats in that case divisible from torture because the former involves mental or emotional pain while the latter involves physical pain. Mejia, however, is distinguishable because the threats in that case were not simultaneous with the other criminal conduct and did not facilitate them. In Mejia the defendant engaged in a three-month campaign of torture against his wife, and the decision concluded that "the threats [were] neither necessary to the commission of torture nor sufficient to satisfy any of its elements." (Mejia, supra, at p. 1046.) Here, by contrast, Alvarez's threat to harm Doe if she screamed was an integral part of his attempt to rape her and thus, unlike the threats in Mejia, not divisible from the assault with intent to rape. The Attorney General also points to People v. Solis (2001) 90 Cal.App.4th 1002, but that case is also distinguishable: In Solis, the threatening messages were left an hour before the defendant set fire to the victim's apartment and, thus, did not facilitate his arson offense. (Id. at pp. 1021-1022.)
III. Disposition
The judgment is reversed. The matter is remanded to the trial court, which is directed to resentence Alvarez and to stay the sentences in two of his three convictions pursuant to Penal Code section 654.
WE CONCUR: GREENWOOD, P.J., BAMATTRE-MANOUKIAN, J.