Filed 5/21/21 P. v. Alvarez CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent,
A158675
v.
VICTOR ALVAREZ, (Alameda County
Super. Ct. No. 17-CR-031843)
Defendant and Appellant.
In the course of stealing a pickup truck from the victim, James
Figueroa, Jr., defendant Victor Alvarez fatally struck Figueroa with the
vehicle. Alvarez pleaded guilty to recklessly evading a peace officer during
an ensuing chase, and a jury convicted him of one count of first degree felony
murder and found true the allegation that he personally used a deadly
weapon during the offense. After Alvarez admitted he suffered a prior prison
term under Penal Code1 section 667.5, subdivision (b) (section 667.5(b)), the
trial court sentenced him to a total term of 28 years to life in prison.
On appeal, Alvarez claims that (1) police opinion testimony about the
murder weapon was improperly introduced; (2) the prosecutor erred by
relying on “victim impact evidence”; (3) the one-year term imposed under
All further statutory references are to the Penal Code unless
1
otherwise noted.
1
section 667.5(b) must be stricken in light of Senate Bill No. 136 (2019–2020
Reg. Sess.) (Senate Bill No. 136); and (4) remand is required for a hearing on
his ability to pay a $10,000 restitution fine and two assessments. We accept
the Attorney General’s concession that Alvarez is entitled to relief under
Senate Bill No. 136, and we conclude that the matter must be remanded for
the trial court to strike the section 667.5(b) enhancement and conduct a full
resentencing, at which time the court may address the ability-to-pay issue.
We otherwise affirm.
I.
FACTUAL AND PROCEDURAL
BACKGROUND
A. The Murder
Figueroa lived with his two sons and his parents in San Lorenzo.
Around 5:00 a.m. on October 19, 2017, he was preparing to go to work. As
was his custom, he went outside to start his vehicle, a white GMC Sierra
pickup truck parked in front of his house, and came back inside to get his
coffee and lunch.
Josefina Barajas was a friend of Alvarez’s who testified under a grant
of immunity. Barajas testified that she and Alvarez, later accompanied by
two other friends, Jose Almarez (known as “Crazy”) and Clifford Hare, spent
the previous night driving around the East Bay and stealing cars. Barajas,
Alvarez, and Crazy also smoked crystal methamphetamine.
Early on the morning of October 19, the group stole a brown GMC
Sierra pickup truck. Eventually, with Crazy driving the other three in the
brown truck, the group arrived in Figueroa’s neighborhood. Barajas testified
that they saw “a white new truck” with its lights on and motor running.
After circling around the block, the group stopped next to the white truck to
make sure no one was inside.
2
Barajas testified that Alvarez got out to “see . . . if he was able to take
the [white] truck” while the others stayed in the brown truck, which Crazy
parked a few spaces behind the white truck. Barajas was sitting in the front
seat of the brown truck, and she saw Figueroa run toward the white truck
holding a lunchbox. According to Barajas, Figueroa and Alvarez “tussle[d]”
near the white truck’s driver’s-side door, and Alvarez ended up in the driver’s
seat. As Alvarez was pulling the white truck forward into the street, he hit
Figueroa, who “flew up in the air.” Barajas testified that she could hear
Figueroa’s “bones . . . cracking” as he was hit.
Barajas testified that Crazy then pulled the brown truck next to the
white truck so the group could talk to Alvarez. Barajas was “screaming,” and
Alvarez “wanted [her] to calm down, so [she] could . . . find a way to the
nearest freeway.” Barajas testified that she told Alvarez he had hit the other
man but he did not respond. Both trucks then drove away from the scene.
Barajas confirmed that the brown truck never hit or ran over Figueroa.
A witness who was also on her way to work at the time noticed “a lot of
commotion” near Figueroa’s house. She saw Figueroa standing in front of the
white truck, which “just left” and ran into him, at which point he went “in the
air.” As the white truck drove by her, the witness saw a man driving it. She
testified that she also saw a brown truck with at least two occupants leave
the scene with the white truck.2
The witness called 911, and Figueroa was taken to the hospital, where
he died a few days later. An autopsy revealed that he died from blunt-force
trauma to his head. His skull had “a large area of fracturing” and he
sustained brain trauma, injuries consistent with being in a car accident. He
2Barajas and the female witness gave inconsistent testimony about
which truck followed the other.
3
had minor bruising and scrapes on his left leg, but he did not have other
broken bones or major injuries. The evidence tended to suggest that he was
not run over by a vehicle but instead died from hitting his head after being
knocked into the air.
B. The Aftermath
After fleeing from Figueroa’s neighborhood, Alvarez, Barajas, Crazy,
and Hare stopped near some railroad tracks in Oakland. Barajas again told
Alvarez he had hit Figueroa. Alvarez, whom Barajas described as “scared”
and “confused,” responded, “I know.” Barajas and Alvarez planned to
“ransack” the white truck, but Barajas could not bring herself to do so.
Instead, she waited outside the truck while Alvarez rummaged through it.
The group left, with Alvarez driving Crazy in the white truck and
Barajas driving Hare in the brown truck, and stopped near the railroad
tracks again several blocks away. Barajas testified that “the agreement
[was] that [Alvarez] and Crazy were going to take the [white] truck into the
tracks and just burn it,” but she did not actually see this occur. She and
Hare left to wait at Crazy’s house, and about a half hour later Alvarez
arrived there on foot. Barajas and Alvarez later attempted to sell some of the
belongings he had taken from Figueroa’s truck.
Later on the night of October 19, law enforcement officers located
Alvarez, who was driving the brown truck. When the officers attempted to
stop him, he “fled at a high rate of speed.” After driving through numerous
stoplights and stop signs throughout Oakland, Alvarez eventually reached an
area with too much traffic to proceed. Alvarez then drove up onto the
sidewalk, through a park, and back onto the street. Eventually, the brown
truck crashed into a fence, and Alvarez attempted to escape on foot but was
4
apprehended. The white truck was later found abandoned on the railroad
tracks.
C. Procedural History
Alvarez was charged with one count of murder and accompanying
allegations that he personally used a deadly and dangerous weapon—the
white truck—and personally inflicted great bodily injury. He was also
charged with one count of recklessly evading a peace officer, and a prior
prison term was alleged under section 667.5(b).3 He pleaded guilty to the
reckless-evasion charge before trial.
The jury convicted Alvarez of first degree felony murder based on the
underlying felony of carjacking and found true that he personally used a
deadly and dangerous weapon during the murder. It found not true the
allegation that he inflicted great bodily injury on Figueroa.4 In October 2019,
the trial court sentenced Alvarez to a total term of 28 years to life, composed
of the midterm of two years for reckless evasion, a consecutive one-year term
for the use of a deadly and dangerous weapon, a concurrent one-year term for
the section 667.5(b) enhancement, and a consecutive term of 25 years to life
for the murder.
3 The charges were brought under section 187, subdivision (a) (murder),
and Vehicle Code section 2800.2, subdivision (a) (reckless evasion). The
allegations accompanying the murder charge were made under
sections 12022, subdivision (b)(1) (use of deadly and dangerous weapon), and
1203.075 (infliction of great bodily injury).
4The trial court later characterized this finding, while “odd,” as a
legitimate inconsistent verdict. (See People v. Carbajal (2013) 56 Cal.4th
521, 532–533 [“ ‘The system accepts the possibility that “the jury arrived at
an inconsistent conclusion through ‘mistake, compromise, or lenity’ ” ’ ”].)
5
II.
DISCUSSION
A. Alvarez’s Challenge to the Police Officer Opinion Testimony Fails.
Alvarez claims that the prosecution improperly elicited “police officer
opinion testimony that the white truck . . . and not the brown truck . . . was
the ‘murder weapon,’ ” which amounted to an opinion that he was guilty of
murder. He argues that the admission of this testimony violated his federal
and state constitutional rights to due process and a fair trial. We are not
persuaded.
1. Additional facts
A sergeant for the Alameda County Sheriff’s Office who was present
when the brown truck was searched testified that DNA swabs were taken
from it but not tested. He explained that “the only reason” he would have
wanted them tested would be to confirm Alvarez was in the brown truck,
which was already established because of the chase. In addition, the truck’s
owner indicated “multiple people had control of that vehicle,” so there could
have been DNA from several unrelated individuals.
The sergeant also testified that he interviewed Barajas, Crazy, and
Hare during the investigation. The prosecutor then asked, “After conducting
these interviews, did you feel it necessary to go back and process the brown
truck in any way?” The sergeant indicated he did not, and the following
exchange then occurred:
“[PROSECUTOR]: Throughout the entirety of your investigation
in this case, is there any evidence or statements that caused you
to believe the brown truck was the murder weapon?
“[DEFENSE COUNSEL]: Objection. Irrelevant, as to what his
conclusions were.
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“THE COURT: Can you rephrase? I’m going to sustain. I think
it’s a little broad.
“[PROSECUTOR]: Throughout the entirety of your investigation,
was there any evidence or statements that caused you to
investigate the brown vehicle as the murder weapon?
“[SERGEANT]: Um, no. Not in any way. All statements and
evidence lead us to believe that the white vehicle was the vehicle
used to run over James Figueroa.”
2. Analysis
Lay opinion testimony is permissible if the opinion is “[r]ationally
based on the perception of the witness” and “[h]elpful to a clear
understanding of [the witness’s] testimony.” (Evid. Code, § 800.) “A witness
may not express an opinion on a defendant’s guilt. [Citations.] The reason
for this rule is not because guilt is the ultimate issue of fact for the jury, as
opinion testimony often goes to the ultimate issue. [Citations.] ‘Rather,
opinions on guilt or innocence are inadmissible because they are of no
assistance to the trier of fact. To put it another way, the trier of fact is as
competent as the witness to weigh the evidence and draw a conclusion on the
issue of guilt.’ ” (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 77.) A
trial court’s evidentiary rulings are reviewed for an abuse of discretion.
(People v. DeHoyos (2013) 57 Cal.4th 79, 131.)
The Attorney General argues that Alvarez forfeited this claim because
the objection below was “only on the ground that [the sergeant’s] testimony
was irrelevant,” not that the testimony was an improper opinion about guilt.
We agree. An evidentiary objection must be “so stated as to make clear the
specific ground of the objection.” (Evid. Code, § 353, subd. (a).) Alvarez’s
objection on relevance grounds did not clearly convey the claim about
improper opinion testimony he now advances on appeal. Moreover, once the
7
prosecutor rephrased the question and the sergeant answered it, Alvarez did
not object again, further suggesting he did not challenge the testimony as an
opinion on guilt.
Even if Alvarez’s objection had preserved the claim, any error was
harmless. We agree with Alvarez that the key disputed issue was whether
the white truck or the brown truck hit Figueroa, as it was undisputed that
Alvarez was driving the white truck. We will also assume, as Alvarez urges,
that the sergeant’s testimony that all the evidence the investigation
uncovered suggested the white truck hit Figueroa could be construed as
testimony that all the evidence suggested Alvarez committed the crime. But
there was almost no evidentiary support for the theory that the brown truck
struck Figueroa, and it is highly unlikely that the sergeant’s brief testimony
swayed any jurors on this issue. Therefore, any error was harmless beyond a
reasonable doubt (Chapman v. California (1967) 386 U.S. 18, 24), and it is
not reasonably probable that Alvarez would have obtained a more favorable
verdict had the testimony been excluded (People v. Watson (1956) 46 Cal.2d
818, 836).
B. Alvarez’s Claim of Prosecutorial Error Lacks Merit.
Alvarez next contends that the prosecutor erred by eliciting “victim
impact evidence” from Figueroa’s mother and relying on it in the opening
statement. We reject this claim.
1. Additional facts
During her opening statement, the prosecutor stated that she wanted
to “introduce” the jury to Figueroa, who “would have been 48 years old in just
two and a half weeks. To his friends and family, he was known as Kimo.
And, in addition to his vast amount of friends and extended family, Kimo was
[a] son . . . [,] a brother . . . [, and] a father to two sons.” The prosecutor also
8
told the jury that Figueroa and his sons lived with Figueroa’s parents and
that Figueroa “was working at a construction job,” “coaching [L]ittle
[L]eague,” and “even studying to be a [Boy Scout] leader. Kimo was a
hardworking man.”
Figueroa’s mother, the first witness the prosecution called, testified
that Figueroa was a heavy equipment operator and did “a lot of things for
[his parents] around the house, and he was in the middle of re-stuccoing the
house” when he died. She also testified that Figueroa was an A’s and Raiders
fan, was “very involved” with his two sons’ sports activities, and was active
with the Boy Scouts. Alvarez did not object to either this testimony or the
prosecutor’s description of Figueroa in the opening statement.
During closing argument, Alvarez’s trial counsel stated that since the
District Attorney had chosen to charge Alvarez with murder only, the jury
did not “have the opportunity to convict him of carjacking” or another lesser
crime. On rebuttal, the prosecutor responded as follows:
“The defense talked about the fact that the defendant is not
here facing car theft or even carjacking charges. Do you know
how you would know that he was appropriately charged with car
theft or carjacking? Because James Kimo Figueroa, Jr.[,] would
have walked through those doors over there. He would have
walked up to this witness stand[,] he would have taken the same
oath that every other witness in this trial took[,] and he would
have told you exactly what happened on October 19. The reason
that this is not charged as a car theft or a car[]jacking . . . [is]
because the defendant killed Kimo in this case.”
2. Analysis
Prosecutorial error “occurs, as a matter of state law, when a prosecutor
‘engage[s] in deceptive or reprehensible tactics in order to persuade the trier
of fact to convict.’ [Citation.] Federal constitutional error occurs only when
the prosecutor’s actions ‘comprise a pattern of conduct that is serious and
9
egregious, such that the trial is rendered so unfair that the resulting
conviction violates the defendant’s right to due process of law.’ ” (People v.
Daveggio and Michaud (2018) 4 Cal.5th 790, 854.)
The Attorney General argues that Alvarez forfeited this claim because
he did not object to the prosecutor’s statements or Figueroa’s mother’s
testimony. Generally, “in order to preserve a claim of prosecutorial
misconduct for appeal, a defendant must make a timely and specific objection
to the alleged misconduct and request the jury be admonished to disregard
it.” (People v. Seumanu (2015) 61 Cal.4th 1293, 1339.) We agree with the
Attorney General that because Alvarez failed to object below, this claim is not
preserved for appeal. Nonetheless, since Alvarez argues that his trial counsel
rendered ineffective assistance by failing to object, we will address the claim
on the merits.
Alvarez calls his claim one of prosecutorial error, but essentially it is a
claim that Figueroa’s mother’s testimony about Figueroa was inadmissible.
“ ‘Although it is misconduct for a prosecutor intentionally to elicit
inadmissible testimony [citation], merely eliciting evidence is not
misconduct.’ ” (People v. Chatman (2006) 38 Cal.4th 344, 379–380.) Rather,
a claim that a prosecutor elicited inadmissible testimony is akin to a claim
that the evidence was erroneously admitted. (See id. at p. 380.) In turn, the
only reason that Alvarez claims the prosecutor’s opening statement was
improper was because it relied on the purportedly inadmissible evidence.
Accordingly, the determinative issue is whether the testimony was properly
admitted.
Alvarez argues that victim impact evidence “is irrelevant and poses the
unacceptable danger of encouraging jurors to render a decision based on
sympathy and emotions untethered to the facts of the case.” It is true that
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such evidence, which “relate[s] to the personal characteristics of the victim
and the emotional impact of the crimes on the victim’s family” (Payne v.
Tennessee (1991) 501 U.S. 808, 817), is generally inadmissible at the guilt
stage of a capital trial. (People v. Salcido (2008) 44 Cal.4th 93, 150–151.)
But characterizing the challenged testimony as victim impact evidence does
not alter the analysis of whether it is inadmissible on a ground, such as
relevance or undue prejudice, that applies to any other type of evidence. (See
People v. Banks (2014) 59 Cal.4th 1113, 1165; People v. Redd (2010)
48 Cal.4th 691, 731, fn. 20.)
Alvarez fails to convince us that the challenged testimony was
irrelevant. Relevant evidence is that “having any tendency in reason to prove
or disprove any disputed fact that is of consequence to the determination of
the action” (Evid. Code § 210), and trial courts have “broad discretion in
determining the relevance of evidence.” (People v. Crittenden (1994)
9 Cal.4th 83, 132.) As the Attorney General points out, some of the
challenged testimony was directly relevant to the charged offense, to the
extent it explained why Figueroa left his truck running while he was at his
parents’ house early on the morning in question. In addition, the fact he was
an Oakland A’s fan was relevant because A’s tickets with consecutive seat
numbers were found in the white truck and the brown truck. And while
other details about Figueroa did not clearly bear on contested issues in the
case, we cannot say that the trial court lacked discretion to admit evidence of
his basic biographical background.
Nor was the challenged evidence unduly prejudicial. Alvarez does not
explain why Figueroa’s mother’s testimony was objectionable on this ground.
Instead, he suggests that the prosecutor’s statements in closing argument
constituted an improper appeal to the jury’s sympathy. To the extent Alvarez
11
intends to raise a separate claim of prosecutorial error as to these
statements, we reject it. Although he is correct that “ ‘[a]n appeal for
sympathy for the victim is out of place during an objective determination of
guilt’ ” (People v. Kipp (2001) 26 Cal.4th 1100, 1130), the prosecutor’s
argument here was not such an appeal. Rather, in response to a specific
defense argument, it focused on the legal significance of Figueroa’s death.
Thus, it was not akin to the erroneous argument in Kipp, which invited the
jury to concentrate on the fact that “ ‘[a] living, breathing human being had
all of that taken away’ ” (id. at pp. 1129–1130), or other arguments that
improperly focus on the human impact of the victim’s death. (See, e.g.,
People v. Vance (2010) 188 Cal.App.4th 1182, 1188 [prosecutor committed
misconduct by “invit[ing] the jury to put itself in the [murder] victim’s
position and imagine what the victim experienced”].)
In any case, even if any of the challenged testimony was inadmissible
or any of the prosecutor’s statements were improper, the error was patently
harmless. Alvarez provides little argument on this point, asserting only that
“[t]he improper victim impact testimony encouraged the jury to reach a
verdict based on sympathy and emotion, rather than an analysis of the facts.”
But Figueroa’s mother’s testimony about her son’s characteristics was quite
brief, and the prosecutor merely touched upon them in her opening
statement. And as mentioned above, the case against Alvarez was very
strong, since the evidence almost uniformly indicated that he was driving the
white truck when it struck Figueroa. Thus, we again conclude that any error
was harmless beyond a reasonable doubt (Chapman v. California, supra,
386 U.S. at p. 24), and it is not reasonably probable that Alvarez would have
obtained a more favorable verdict had the purported error not occurred
(People v. Watson, supra, 46 Cal.2d at p. 836).
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Finally, Alvarez asserts that this court “should consider the cumulative
prejudicial impact of the improper victim impact [testimony] and the
improper police officer opinion as to guilt[].” We have concluded that no error
occurred involving the evidence about Figueroa’s background, and any error
in admitting the police opinion testimony was harmless for the reasons given
above. As a result, Alvarez’s claim of cumulative error fails.
C. Remand Is Required for the Trial Court to Strike the
Section 667.5(b) Enhancement and Conduct a Full Resentencing.
Alvarez contends that this court should strike the one-year concurrent
term the trial court imposed under section 667.5(b), because after he was
sentenced the statute was amended to eliminate such sentences except in
cases involving sexually violent offenses. The Attorney General, while
conceding that Alvarez is entitled to relief, argues that remand for
resentencing is the appropriate remedy. We agree with the Attorney
General.
“ ‘Effective as of January 1, 2020, Senate Bill [No.] 136 . . . amend[ed]
section 667.5[(b)] to limit its prior prison term enhancement to only prior
prison terms for sexually violent offenses, as defined in Welfare and
Institutions Code section 6600, subdivision (b).’ ” (People v. France (2020)
58 Cal.App.5th 714, 718.) As the parties agree, Senate Bill No. 136 is
retroactive and therefore applies to Alvarez because his case is not yet final.
(See In re Estrada (1965) 63 Cal.2d 740, 742; France, at p. 719; People v.
Keene (2019) 43 Cal.App.5th 861, 865.)
The Attorney General contends that we should remand the matter for
resentencing instead of striking the section 667.5(b) enhancement ourselves.
We agree. Generally, “when part of a sentence is stricken on review, on
remand for resentencing ‘a full resentencing as to all counts is appropriate, so
the trial court can exercise its sentencing discretion in light of the changed
13
circumstances.’ ” (People v. Buycks (2018) 5 Cal.5th 857, 893.) This rule does
not apply when “the trial court has already imposed the maximum possible
sentence, [making] a remand for resentencing . . . unnecessary.” (People v.
Gastelum (2020) 45 Cal.App.5th 757, 772–773.) But here, Alvarez pleaded
guilty to reckless evasion as an open plea, not in exchange for a particular
term, and the trial court exercised its discretion to impose the midterm.
Accordingly, remand for a full resentencing is appropriate. (See People v.
Choi (2021) 59 Cal.App.5th 753, 770.)
D. The Trial Court Should Address Various Fines-and-fees Issues
During Resentencing.
The trial court imposed a $40 court operations assessment under
section 1465.8, subdivision (a), a $60 criminal conviction assessment under
Government Code section 70373, and a $10,000 restitution fine under
section 1202.4, subdivision (b).5 Alvarez’s trial counsel, relying on People v.
Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), objected “to imposition of fines
and fees absent a determination of [his] client’s ability to pay” and asked the
court “to find that in fact given [Alvarez’s] prolonged incarceration and his
anticipated very lengthy incarceration that he has no ability to pay.” The
court responded, “I think you’re right about him having no ability to pay,” but
after noting the appellate split on the issue, it declined to follow Dueñas.
Relying on Dueñas and People v. Kopp (2019) 38 Cal.App.5th 47, review
granted Nov. 13, 2019, S257844, Alvarez contends that the assessments must
be stricken and the restitution fine must be stayed unless and until the trial
court finds he is able to pay them. Since the court considered the issue, the
law in this area has continued to develop. (See, e.g., People v. Cowan (2020)
5 The only other charge was a parole revocation restitution fine, which
the trial court imposed and suspended under section 1202.45, subdivision (a).
14
47 Cal.App.5th 32, 34–35, review granted Jun. 17, 2020, S261952
[constitutional prohibition of excessive fines requires ability-to-pay hearing
when same three charges challenged].) In addition, although the Attorney
General does not raise the issue, we note that the court did not impose one
$40 assessment per conviction under section 1465.8 as required. Because a
full resentencing will occur on remand, we conclude that is premature to
address these issues. Instead, the court should consider them when
resentencing Alvarez.
III.
DISPOSITION
The matter is remanded with directions to strike the one-year
enhancement imposed under section 667.5(b) and conduct a full resentencing.
The judgment is otherwise affirmed.
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_________________________
Humes, P.J.
WE CONCUR:
_________________________
Banke, J.
_________________________
Sanchez, J.
People v. Alvarez A158675
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