People v. Alvarez

1

THE PEOPLE, Plaintiff and Respondent, v. ISHMAL ANTHONY ALVAREZ, Defendant and Appellant.

B315396

California Court of Appeals, Second District, Fourth Division

June 9, 2023

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County No.KA122133, Mike Camacho, Judge. Affirmed.

Robert H. Derham, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Steven D. Matthews and Rama R. Maline, Deputy Attorneys General, for Plaintiff and Respondent.

STONE J. ^[*]

A jury convicted defendant and appellant Ishmal Anthony Alvarez of forcible rape, forcible oral copulation, lewd acts on a minor, sexual battery and disorderly conduct by secretly recording the body of a minor. In a bifurcated proceeding, the court found true that appellant suffered a prior serious felony and a strike within the meaning of the Three Strikes law, and subsequently sentenced appellant to an aggregate prison term of 62 years.

On appeal, appellant raises seven issues, contending that: (1) the trial court abused its discretion in denying his Marsden^[1] motion; (2) there was insufficient evidence to support a finding that the victim, R.H., was under 14 years of age during the commission of count 4; (3) the trial court violated his constitutional rights by refusing to discharge a sleeping juror; (4) the mandate of full-term, consecutive sentences required by Penal Code^[2] section 667.6, subdivision (d), based on a court's finding that the offenses occurred on separate occasions violates the Sixth Amendment right to a jury trial under Apprendi v. New Jersey (2000) 530 U.S. 466, and its progeny;^[3] (5) the trial court erred in finding that consecutive sentences on counts 1 to 3 were mandatory under subdivision (d) of section 667.6; (6) the matter must be remanded for resentencing on counts 1 to 3 following the recent amendment to section 1170 by Senate Bill No. 567 (SB 567); and (7) the trial court violated appellant's due process rights by imposing fines and fees without first finding he had the ability to pay them.

We conclude that appellant has forfeited his juror-discharge and fines/fees challenges by failing to interpose any objections with regard to these claims in the trial court. Discerning no reversible error in appellant's remaining contentions, we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

A. Prosecution Case

1. Background

R.H. was born on July 3, 2000; she was 20 years old when she testified at trial. When R.H. was in the fifth grade, she met appellant's daughter, Kayla Alvarez, who was one grade behind her. The two became fast friends, "like sisters."

R.H. began spending most of her days and eventually most of her nights at the Alvarez house, where Kayla lived with her older brother, Myles, and appellant, her father.^[4] R.H. became a member of the Alvarez household. She ate meals there, and appellant paid for her telephone, drove her to and from school, and took her shopping. Appellant was like a father to R.H., and she trusted him.

When R.H. was in middle school, appellant began buying her clothes and having her try them on. He took photos of her in the clothes. Some of the dresses were short and revealing, and R.H. felt uncomfortable wearing them.

2. The Sexual Offenses Charged in Counts 1-7

In addition to photographing R.H. in clothing he purchased for her, appellant also took nude videos of R.H. without her knowledge and permission.

Appellant sometimes invited R.H. into his room at night. She would sit on the bed while he spoke to her, or he would have her try on clothes. He encouraged her to sleep on the bed.

On one occasion, when R.H. was in middle school, she fell asleep on the bed. She awoke when appellant slipped his hand down her pants and under her briefs. He rubbed her vagina and put his finger into her vagina. She told him to stop. He did not. She moved away, but he pulled her back so he could reach her vagina. Eventually she got up and went to Kayla's room. She did not tell Kayla, or anyone else, what had happened because she was embarrassed and could not understand the situation.^[5]

Around the beginning of her freshman year in high school, appellant put handcuffs and Velcro restraints on R.H. while she and Kayla were in the living room. He said he did it to train R.H. how to escape if she ever found herself in that situation. He also put her in restraints many times when Kayla was not present. He tied her to the bed frame with Velcro so she could not free herself. On one of these occasions he rubbed her vagina and inserted a finger into her while she was bound. R.H. told appellant to stop about a dozen times, but he continued touching her. R.H. finally freed herself and left the room.^[6]

Additional incidents took place one morning before school when R.H. was approximately 15 years old and a sophomore in high school. Appellant asked R.H. to sit next to him on the living room couch. He touched R.H. inappropriately on her vagina. R.H. told him to stop. Appellant kept persisting. Appellant rubbed and put his fingers inside R.H.'s vagina. R.H. told appellant that she had to get ready for school. Appellant told her she still had time.

R.H. pushed appellant away, but appellant pulled her closer. He took off her pants. R.H. told him to stop. Appellant held her down to prevent her from getting up. He then performed oral copulation on her vagina. R.H. again told him to stop, and that this was not okay. He lowered his pants and had vaginal intercourse with her. R.H. told him many times to stop, but he continued until he heard Kayla and her brother getting out of bed. R.H. then left the room and took a shower. Appellant took R.H., Kayla, and Myles to school. R.H. threw up in the bathroom and went to the school nurse.^[7]

That was the last time appellant touched her sexually. R.H. continued to go to the Alvarez house. She feared that if she were not there, appellant would do these things to Kayla. After Kayla moved out of the house, R.H. stopped going there "as often." She felt uncomfortable around appellant when she was alone with him.

3. Disclosure of Sexual Abuse

Brissa Renteria had known Kayla since the sixth grade. Brissa also knew R.H. On July 23, 2016, R.H. told Brissa over SnapChat that appellant had violated her. Brissa asked R.H. what appellant had done to her. R.H. responded, "the most you could do but it never went in." R.H. testified that she was too scared to tell Brissa about appellant penetrating her. R.H. told Brissa that she was the first to know.

Brissa wondered how appellant could do these things if R.H. was always with Kayla. R.H. answered, "the mornings or when she was asleep or sometimes i would wait for her and he would try." She wrote that "it happened before school once freshmen year and I literally was so sick I couldnt eat or do anything i don't know what to do im going to tell her i need too."^[8]

R.H. told Brissa she was "scared," and did not "want a court thing to happen." Brissa offered that R.H. could choose to do nothing if there was no proof. R.H. agreed, stating, "exactly and i don't want that and it is too late for proof but i don't want it to get to the law if that happens im scared i will get put into another home."^[9]

After her message exchange with Brissa, R.H. told Kayla she had been raped. She said appellant had forced her to do sexual things but did not describe the acts specifically. Kayla confirmed R.H. told her of the assaults in 2016-2017. R.H. did not want to call the police or publicize the incidents; Kayla agreed to keep silent.

R.H. also spoke of the sexual abuse to Cameron, a boy she dated from age 17 to age 19. In January 2019, Cameron told R.H.'s foster brother that R.H. had been sexually assaulted. The foster brother called the police.

4. The Investigation and Recovery of Evidence

City of Glendora Police Officer Jacob Swan was the assigned investigator in this case and had special training in investigating sex-related crimes. Officer Swan interviewed R.H. three times.

The police searched appellant's home and found numerous electronic recording devices, phones, cameras, and thumb drives. The police also recovered a digital video recorder for a surveillance system.

Glendora Police Sergeant Matthew Fenner recovered images of R.H. from appellant's laptop and iPhone. There were approximately 2,226 images and 21 videos of her on the laptop. These included 83 still shots of R.H. in the bathroom, using the toilet or showering, and six videos of R.H. in the shower and using the restroom. All of these images appeared to have been captured without R.H.'s knowledge by a camera hidden in the bathroom. R.H. believed they were taken when she was 14 or 15 years old. The police also recovered a box for a "mini spy camera" and what appeared to be the camera that came in that box.

The images found on appellant's laptop were organized in the "pictures" section of the laptop, under the username "Daddy." Some of the images on the laptop were cropped to show only R.H.'s breasts and genitals; these images had been copied from appellant's cell phone. One video was taken from the backyard of the house through the bathroom window.

Sergeant Fenner also discovered 1,030 images of R.H. on appellant's cell phone, including 33 nude images, 7 videos, and a video of her unclothed in the bathroom.

Images of other women, not R.H., were also discovered on the devices. These included pictures of young women in public that focused on their buttocks. There were also pornographic pictures of bound women and unconscious women being touched in sexual ways.

5. Expert Testimony

Dr....