People v. Alvarez

1

THE PEOPLE, Plaintiff and Respondent, v. RUBEN DIAZ ALVAREZ, JR., Defendant and Appellant.

E077924

California Court of Appeals, Fourth District, Second Division

June 14, 2023

NOT TO BE PUBLISHED

APPEAL from the Superior Court of Riverside County. No. BAF1601284 Jacqueline C. Jackson, Judge.

Valerie G. Wass, under appointment by the Court of Appeal for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Eric A. Swenson and Felicity Senoski, Deputy Attorney Generals, for Plaintiff and Respondent.

OPINION

MILLER ACTING P.J.

Defendant and appellant Ruben Diaz Alvarez, Jr., offered to take Jane Doe to her friend's house, but instead brought her back to his home and sexually assaulted her. He was convicted of two counts of forcible rape, forcible oral copulation attempted sodomy, and assault with the intent to commit rape. Defendant was also found to have been previously convicted of rape by force within the meaning of the "One Strike" law, and to have suffered two prior serious and violent felony convictions within the meaning of the "Three Strikes" law.

Defendant claims on appeal that (1) the trial court erred by failing to stay either of the sentences for both his conviction of rape by force or fear and assault with intent to commit rape, as one of his sentences must be stayed pursuant to Penal Code section 654^[1]; (2) the trial court abused its discretion by failing to dismiss one of his prior serious and violent felony convictions in the interests of justice; and (3) his sentence of 275 years to life plus five years violates the federal and state constitutional prohibitions on cruel and/or unusual punishment.

FACTUAL AND PROCEDURAL HISTORY

A. PROCEDURAL HISTORY

The Riverside County District Attorney's Office charged defendant with rape by means of force or fear (§ 261, subd. (a)(2); counts 1 &2); forcible oral copulation (§ 288a, subd. (c)(2)(A); count 3); attempted sodomy (§§ 664, 286, subd. (c)(2)(A); count 4); and assault with the intent to commit rape (§ 220, subd. (a); count 5). It was further alleged as to counts 1, 2, and 3, pursuant to section 667.61, subdivision (d)(1), that defendant had suffered a prior conviction of rape by means of force or fear in 2011. It was additionally alleged that defendant had suffered a prior serious felony conviction within the meaning of section 667, subdivision (a), and that he had suffered two prior serious and violent felony convictions within the meaning of sections 667, subdivisions (c), and (e)(2)(A), and 1170.12, subdivision (c)(2)(a).

The jury found defendant guilty on all counts. It further found true the special allegation that defendant was previously convicted of rape by force within the meaning of section 667.61, subdivision (d)(1), for counts 1, 2 and 3. It also found the prior convictions alleged pursuant to sections 667, subdivisions (a), (c), and (e)(2)(A), and section 1170.12, subdivision (c)(2)(a), to be true.

Defendant was sentenced on October 20, 2021. The trial court imposed 75-years-to-life sentences on counts 1, 2 and 3, pursuant to the One Strike and Three Strikes laws, and ordered them to run consecutive. On counts 4 and 5, the trial court imposed 25-years-to-life sentences, pursuant to the Three Strikes law, and they were ordered to run consecutive to each other and to the sentences on counts 1, 2 and 3. In addition, the trial court imposed a five-year determinate sentence for the prior serious felony conviction found true pursuant to section 667, subdivision (a). Defendant received a total sentence of 275 years to life, plus five years.

B. FACTUAL HISTORY

1. CURRENT INCIDENT INVOLVING JANE DOE

a. Doe's Testimony

At approximately 3:00 or 4:00 p.m. on September 19, 2016, Jane Doe, who was 31 years old at the time of trial, was walking in Highland. She was carrying most of her belongings in a duffel bag. Defendant approached her in his vehicle and asked her if she wanted a ride. Doe accepted the ride and he drove her to her friend's house. He gave Doe his number in case she ever needed another ride.

Just a few hours later, Doe called defendant and asked for a ride to another friend's house in San Bernardino. Defendant picked her up, but rather than take her to her friend's house, he drove her to his mobile home in a mobile home park in Calimesa. Defendant invited her in telling her that he wanted to cook something. She agreed, bringing her belongings with her.

Defendant and Doe had some beer and food. They talked and defendant showed her around the mobile home. He told her she could take a shower. She took a shower, did her makeup and got dressed. They then sat on the couch watching television.

While they were watching television, defendant began rubbing her thighs and then her vagina over her clothes. Doe told him no several times and tried to move away. Defendant got angry and hit her in the face. Doe's eye began to swell. Doe had braces, which caused cuts inside of her mouth that were bleeding because she was hit.

Defendant removed all her clothes except for her underwear and removed his own clothes. He flipped her over and attempted to insert his penis in her anus but she kept moving away and resisting him. Doe was scared and did not think she could do anything to stop him. At some point, defendant put on a condom and was able to penetrate Doe's vagina on two occasions. She was able to push him away.

Doe was sitting on the couch and defendant told her "suck my dick." He removed the condom. She said no. Defendant forced her head down to his penis. Doe vomited on his penis. Defendant continued to push her head down on his penis. He gave her a cup to vomit in. Doe kept vomiting on him, the couch cushions, and into the cup he gave her. Doe indicated that defendant was pushing her head with one hand and holding his phone in the other hand, recording the entire incident.

Doe was able to get away from defendant by telling him she wanted to get some wax to cover her braces and that the wax was in her bag. He let her get her bag. She had nail polish remover in her bag that contained Acetone. She threw it in defendant's face and tried to run. Defendant did not relent and pulled her back to the living room by her hair.

Defendant forced her to take a shower. While she was in the shower, he told Doe that "he fucked up" and that he could not let her go. Doe was able to escape from the mobile home wearing only a towel. Doe ran through the mobile home park trying to find someone to call the police. She yelled out that she had been raped. No one came out to help her but some of the residents called the police.

A portion of Doe's preliminary hearing testimony was read for the jury. She testified that the first time she saw defendant was on September 19, 2016, when it was close to midnight. She denied he gave her a ride earlier in the day. She denied she ever took a shower that night prior to anything happening; they drank beer and watched television. She also went into the restroom to fix her hair and put on makeup. Defendant tried to kiss her on the couch but she jumped away, telling defendant that she had a boyfriend. Defendant took off her underwear and when she told him she "didn't want to do that" he "smacked" her in the face. She recounted that he forced her to orally copulate him and that she vomited. He gave her a cup to throw up in. She was able to get away and throw Acetone in his face. He grabbed her, tried to put his penis in her anus and was able to vaginally penetrate her on two occasions. He forced her to take a shower and then she escaped.

Doe did not tell police in interviews prior to trial that she had been given a ride by defendant earlier in the day because she was afraid that law enforcement would think the incident was her fault. At trial, Doe thought that defendant hit her twice. He hit her after she threw up on the couches.

b. Police Investigation

Riverside County Sheriff's Deputy Gimenez responded to the mobile home park around 3:15 a.m. on September 20, 2016, regarding reports of a woman having been raped. When he arrived, Deputy Gimenez observed Doe, who was only wearing a towel and was barefoot, waving her arms at him. The left side of her face was swollen. She told him that she had been raped. Doe was very emotional and shaken. Doe directed Deputy Gimenez to defendant's mobile home, but defendant had already driven off in his car.

Doe advised Deputy Gimenez that defendant had picked her up and brought her back to his mobile home. Once there, he tried to have anal sex with her, penetrated her vagina with his penis two times, and forced her to repeatedly orally copulate him. She vomited on him. Defendant hit her in the face because she would not comply with his demands. Doe indicated that defendant had used a condom and recorded the incident on his cellular telephone. Defendant forced her to take a shower after the sexual encounters. Doe told the deputy that defendant put on another condom in the shower and tried to have sexual intercourse with her in the shower. Doe identified defendant from a six-pack photographic lineup.

Doe was interviewed again by Riverside County Sheriff's Investigator Lane on September 20, 2016, at the police station. Doe was very emotional. Doe told Investigator Lane that defendant hit her in the face when she would not comply with his demands; he forced her to orally copulate him while they were on the couch and she vomited; he attempted to anally penetrate her; and he penetrated her vagina two times. Doe's left eye was swollen and red. Doe did not disclose that defendant had given her a ride earlier in the day or that she had called him for a ride. She only took one...