Filed 4/13/21 P. v. Alvarez CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

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or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

EFREN ALVAREZ,

Defendant and Appellant.

F078551

(Fresno Super. Ct. No. F16902732)

OPINION

APPEAL from a judgment of the Superior Court of Fresno County. Jonathan B. 

Conklin, Judge.

Law Office of Nico Capozzi and Nico Capozzi for Defendant and Appellant.

Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, 

Julie A. Hokans, and Henry J. Valle, Deputy Attorneys General, for Plaintiff and

Respondent.

-ooOooThree individuals worked under defendant, a crew leader for a farm labor 

contractor, in March 2016. Defendant paid the security deposit and first month’s rent for 

an apartment, and thereafter a house, for them to live in with several others. In exchange,
2.

the victims agreed to work for defendant’s crew through the end of the work “season.” 

The victims gave up their visas as a condition of the loan.

The victims testified that defendant would berate them at work, threaten them with 

immigration consequences, and require them to work for him as a condition of their 

housing. Defendant was convicted of human trafficking as to one victim and extortion by 

means of force or threat as to all three victims.

Days before a defense expert on human trafficking was scheduled to testify at an 

Evidence Code section 402 hearing near the conclusion of trial, a billing and scheduling 

issue arose. The expert indicated he could not testify for several weeks. The trial court 

denied a defense request for a continuance and for a mistrial. Defendant claims on appeal 

that the judgment must be reversed because counsel rendered ineffective assistance with 

respect to the expert. We reject that claim and affirm.

BACKGROUND

In a second amended information, the Fresno County District Attorney charged 

defendant and appellant Efren Alvarez with three counts of human trafficking (counts 1–

3; Pen. Code, § 236.1, subd. (a))1 and three counts of extortion (counts 4–6; §§ 518, 520) 

by means of force or threat (§ 519).

A jury convicted defendant on counts 2, 4, 5, and 6.2 The jury acquitted defendant 

on count 3,3 and deadlocked on count 1.

1 All further statutory references are to the Penal Code unless otherwise stated.

2 The victim of counts 2 and 5 was Elena H.

3 The victim of counts 3 and 6 was Luigi M., and the victim of counts 1 and 4 was 

Carmen B.
3.

The abstract of judgment reflects the court sentenced defendant to eight years in 

prison, comprised of the following: the lower term of five years on count 2, plus one 

year each for counts 4, 5 and 6.4

FACTS

Carmen B.’s Testimony

In late 2015/early 2016, Carmen B.’s5 daughter was set to begin attending a 

university in Mexico. Carmen wanted to work in the United States to help pay for her 

daughter’s tuition. Another individual in Mexico, Elena H., told Carmen there was work 

available in “the fields” in Fresno.

Carmen arrived in the United States on January 9, 2016,6 along with Elena and 

Elena’s son-in-law, Alfonso C. Initially they stayed at the apartment of a woman named 

Pilar. Pilar, her husband and their four children lived in the two-bedroom, one-bathroom 

apartment. Carmen and Elena slept on the floor in Pilar’s daughter’s room, and Alfonso 

slept in the living room.

Around January 13, three more workers moved into Pilar’s house. As a result, 

Pilar told Carmen, Elena and Alfonso they had to move out. Defendant, a crew boss for a 

farm labor contractor, helped Carmen look for a place to live. Defendant told Carmen, 

Elena, Alfonso and several other workers that he would find a place for them to live and 

pay for the deposit and “rent.”7 In exchange for the loan, Carmen and the others would 

do paid work for him, beginning on March 3, while making weekly payments on the loan. 

4

In the oral pronouncement of judgment, the court referenced counts three, four 

and five, instead of four, five and six.

5 According to the prosecutor, the victims asked to be identified by their first name 

and last initial in trial proceedings.

6 All dates are in 2016 unless otherwise noted.

7 While Carmen simply referred to “the rent,” other testimony shows this was 

referring to the first month’s rent.
4.

Defendant said he had work for them in the fields, and they would be paid $100 per day.8 

They would not have to begin repayment on the loan until they began working. Carmen 

willingly agreed to work for defendant as a term of their agreement. Carmen understood 

that she was obligated to work for defendant for the entire season as a term of the loan.

Defendant said that, in order for him to loan money to the group, they needed to 

give him something of value. Pilar suggested Carmen give defendant her visa to secure 

the loan. Carmen handed over her tourist visa but not her passport.

According to Carmen, defendant gave Pilar $1,3609two days later. Defendant 

said he would have a place for them to move to around January 20th.

Beginning January 15th or 16th, Carmen began working on defendant’s crew, 

tying vines. During this initial stint, Carmen only worked for defendant for one week. 

While working for defendant, Carmen worked from 7:00 a.m. to 5:00 p.m. and was paid 

$30.10 Defendant transported Elena, Alfonso, Pilar, Carmen, Pilar’s husband and Pilar’s 

son to work. Defendant deducted money from Carmen’s pay for transportation. Carmen, 

Elena and Alfonso decided that they were not earning enough money, so Pilar contacted a 

man named Don Felix and they began working for him picking oranges. Carmen was 

still slated to work for defendant’s crew beginning on March 3, pursuant to their 

agreement.

On or about January 20, Carmen, Elena, Alfonso and three others moved into the 

new apartment defendant had obtained. The group paid rent for the apartment directly to 

the property management company.

8 Later, Carmen testified that when she started working, she only spoke with Pilar 

about how much she would be paid per hour.

9 Later, Carmen testified that the total cost of the apartment was $1,360 but that 

defendant only loaned $1,000 of that amount.

10 Carmen later testified defendant paid them $130 for the entire week.
5.

Carmen asked defendant for her visa so she could visit her family in Tijuana on 

February 28. Defendant was concerned that Carmen would not repay her loan but 

relented and told Pilar to give Carmen back her visa for the trip. Defendant reminded 

Carmen that she was to begin work with his crew on March 3 and needed to be back by 

then. Defendant said that if she wanted to live in the apartment when she returned, she 

needed to continue working for him once she got back from Tijuana. Carmen went to 

Tijuana for four days. After that time, defendant said Carmen needed to return, which 

she did. Pilar told Carmen to return the visa, but Carmen never did.11

Around March 5, Carmen started working for defendant again. This time, 

Carmen’s work was to “thin” pear, nectarine, and peach trees. Carmen initially testified 

that she worked nine to 10 hours every day, but later testified that her handwritten notes 

indicated she worked 41 hours on the week of March 19, 2016. Some days, it rained, and 

Carmen did not work at all.

Defendant stayed with Carmen and the others while they worked. Defendant 

would sometimes yell at them while they were working. Defendant would tell them they 

were “inept” and “good for nothing.” One time, defendant pushed Carmen. If Carmen 

lowered one of her hands because it was cold, defendant would say he was going to “cut 

it off” or “cut our hands off.”

When Elena would miss some flowers, defendant would send her back to the trees 

she had already worked on to remove the missed flowers. Carmen thought defendant’s 

behavior was inappropriate because “sometimes it was simply one flower.”

Carmen testified about the incident where a worker fell off a ladder. Defendant 

cleaned the worker’s injury and told him to continue working. Defendant would not let 

the worker’s mother approach to see how he was doing. The worker resumed working.

11 As a result, Carmen had her visa and passport when she began working for 

defendant again in March.
6.

Defendant transported the group to and from work. Defendant told Carmen she 

either needed to accept his transportation to the work site or move out of the apartment. 

Defendant told Carmen that transportation would cost $8 per day. Carmen had no 

objection to having to pay to be transported to and from work.

Defendant paid Carmen weekly on Saturdays. Defendant said he was getting paid 

with a single check and would need to cash it to pay them. Defendant deducted $5 per 

week for cashing checks and $40 per week for “taxes.” Carmen calculated that she 

should have been paid $550 per week, but she was only receiving $430 to $440 per week. 

After defendant paid the workers, he would ask for their payments on the loan. When 

they sometimes said they did not have the money, he would leave and return later.

Eventually Carmen and Elena’s group moved to a five-bedroom house on 

Montecito Street. The house was nicer than the apartment where Carmen had previously 

been staying. The house was clean, and large enough that Carmen had her own bedroom. 

Defendant loaned the group $2,200 for rent and deposit for the Montecito house. 

Defendant also loaned them around $70 for the rental application fee, $270 for a

refrigerator, and $150 for “trash.” The ongoing monthly rent was $1,100, which Carmen 

and her housemates paid.

Carmen told Pilar she did not want to move to the house because she would have 

to pay more money. However, Carmen had no discussions with defendant regarding 

moving to the house. Carmen did not get her deposit back from the apartment on 

Hamilton.

Carmen testified she was never prevented from going anywhere in town. Carmen 

was not aware of anyone watching her or guarding the house where she was living. 

However, it did seem like every time she went to the store, she ran into Pilar. On one 

particular day, Elena, Luigi and Carmen went to the store, and defendant arrived 

thereafter and yelled at them to get in his vehicle. He then drove the group home.
7.

Carmen’s husband encouraged her to return to Mexico. However, she did not 

return because, if she did, she would no longer be able to make money for her daughter’s 

schooling. Also, defendant had threatened her regarding her immigration status.

One night, defendant came to the house drunk, looking for payment on the loan. 

He threw rocks at the door of the house. Carmen gave him the payment and the 

conversation ended. The next day, defendant said the group still owed more money. 

Carmen disputed that assertion.

Carmen “believe[s]” her group paid off their loan to defendant on March 20.12 

Once the loan was paid off, defendant told Carmen she was free to work somewhere else. 

Carmen felt free. However, defendant made clear that if she stopped working for 

defendant, she could no longer live in the house on Montecito. Defendant also stated he 

had copies of her visa.

Carmen wanted to visit Tijuana again, around March 27, but did not. Carmen 

testified the reason she did not go on this second trip to Tijuana was that defendant told 

her not to and said he had a copy of her visa.

On March 28, Carmen, Elena and Luigi had a discussion. They talked about how 

defendant was “pressuring” them. They could not sleep well because defendant was 

always yelling that they were “good for nothing.” They also never had time to 

themselves, because defendant was always around. The group decided to “get help” so 

they called a field workers union. Carmen and Luigi met with individuals from the group 

they called and were eventually connected to the police. Carmen was concerned she 

would be sent back to Mexico. Carmen did not want to return to Mexico because she 

wanted to earn money for her daughter’s schooling.

12 Later, Carmen’s testimony suggested the loan was paid off on the Saturday 

before she quit, which would have been March 26.
8.

Luigi quit and did not show up for work on March 29. When defendant came to 

the house to pick everyone up the next morning, he began yelling. Defendant told 

Carmen: “[D]on’t think you are going to go to Tijuana, because I have a copy of your 

Visa. And if you go I’m going to turn you over to immigration.”13 Defendant claimed 

they were ungrateful after he had loaned them money for rent. Defendant said the group 

needed to convince Luigi to return to work or else they would have to work the entire 

season.

Carmen quit working for defendant, with her last day of work occurring on 

March 30.

“Luigi” M.’s Testimony

Luigi M. testified at trial.14 While Luigi was in Mexico, Pilar told him that a 

foreman (defendant) would give him work and find him a place to live. Luigi came to 

Fresno from Tijuana on or about January 19, 2016. Luigi arrived by bus, alongside two 

other people: Gerardo and Israel. Luigi did not know other people in Fresno and did not 

speak English at the time.

Pilar told Luigi he could come to her house but did not say for how long.15 Elena, 

Carmen and Alfonso arrived at Pilar’s house sometime later.

The week after arriving, Luigi went to work for Don Felix earning about $80 per 

day.

13 Carmen had been planning to go to Tijuana that Saturday.

14 Luigi is this individual’s second name, not first. We will refer to him as 

“Luigi,” because it is the name most other witnesses used, and he indicated it was fine for 

trial counsel to refer to him that way. Luigi also acknowledged going by the pseudonym 

Luis Flores. 

15 Later, Luigi testified that he was told he was going to be at Pilar’s house “a few 

days or a few weeks until [defendant] would find a place for us to live.”
9.

Luigi stayed at Pilar’s place for approximately two weeks and paid no rent. When 

it was time for Luigi to move, he needed to rent an apartment. Luigi told Pilar he did not 

have any money to rent an apartment.

Luigi heard defendant and Pilar discussing that Luigi and others needed an 

apartment but had no money. Defendant said he would “give” them an apartment, but

they had to work for him. Pilar and defendant said the only thing the workers had “of 

value” was their visa, passport, and “permit.” Defendant said the visas and passports 

were of “no use” to him. However, they were the only things of value the workers had, 

so they decided Pilar would obtain the documents from the workers, so they would not be 

able to leave without paying. Luigi agreed and handed them to Pilar. Pilar said that once 

defendant had work for them in the future, they were to stop working for Don Felix and 

to begin working for defendant.

The deposit for the apartment was $650, one month’s rent was $650, and the 

application fee was $70. The loan was being made to Luigi, Elena, Carmen, Juan, Emma 

and Christian. Gerardo and Israel were not on the loan “because they had money to pay 

for it all at once.” Luigi’s share of the loan required him to pay back $270 total. Luigi 

understood that after he paid back the loan, he would get his “documents” back.

Luigi, Carmen, Elena and others arrived at the new apartment, which was on 

Hamilton Street. The apartment was empty except for some bed sheets. Defendant did 

not ask Luigi if he needed anything else. One week later, people from Luigi’s church 

gave them dishes, mattresses, a microwave, a table and chairs.

Luigi and his housemates gathered money for rent. Defendant used that money to 

obtain a money order since, according to Luigi, they did not know how to get a money 

order. Defendant was frustrated they could not figure out how to pay with the money 

order themselves.

Luigi began working for defendant during the first week of March. Luigi was still 

living at the Hamilton apartment at the time.
10.

On the first day, defendant used obscenities while berating a coworker for setting 

up his ladder incorrectly. On another occasion, Carmen said her ladder was not working. 

Defendant responded that the “f[**]king ladder did work. That the one that wasn’t

working right was her.” The next day, Luigi had to use that ladder, and he was scared. 

Defendant had a stick in his hand. Defendant said if the workers did not move both 

hands, he would cut them off. Defendant would always yell at them and say they were 

lazy and “not good for anything.” Luigi “got brave” and grabbed a new ladder without 

permission. Defendant asked, “[W]hy did you change that f[**]king ladder?” Luigi said 

he had never disrespected defendant, so defendant should respect him. Luigi told 

defendant the ladder was not functioning. Defendant said, “[T]hat f[**]king ladder does 

work. The one that’s not working right is you.” Defendant then turned around and left.

On another occasion, a different ladder fell on Christian’s head. Defendant told 

Christian’s mother to leave and “get away.” She said she would not leave because 

Christian is her son. Defendant did not see if he was injured and just told him to continue 

working. Christian continued working.

Defendant taught Luigi how to cut the flowers but offered “[v]ery little” 

instruction, saying it was “work for, like, children.”

Luigi worked five days per week for defendant. Based on the pay he was 

receiving from defendant, Luigi calculated he was making $10 per hour. However, 

sometimes money was deducted from his pay for taxes, transportation and check cashing 

fees. Luigi “believe[s]” the transportation deduction was $8 per day. Neither Luigi nor 

his housemates were paid by check.

After Luigi had worked for defendant for two weeks, defendant said more people 

were coming in from Tijuana, and, therefore, Luigi and his housemates were going to 

move to a larger house on “Sierra Vista Montecito.” Luigi was told that if he did not 

want to move, his group would have to break up so some could stay in the Hamilton 
11.

apartment while others moved. Luigi and his group moved to the Montecito house. 

Luigi did not get a deposit back from the Hamilton apartment.

A week after moving to the Montecito house, Luigi paid defendant all he had 

initially owed. Pilar gave him back his visa and other documents.

Luigi needed to get another loan to pay for the new housing. Defendant “paid the 

rent,”16 the deposit and the application fee for the Montecito house, and bought a 

refrigerator for the house. Defendant “added [these amounts] to the debt.” However, 

Luigi did not give up his visa or other documents for this second “loan.” The only 

requirement for the second loan was that Luigi work for defendant through the entire 

season.

While living at the house, Luigi was never told that he was restricted in where he 

could go. Luigi could go to church, the store, and anywhere else in town. Luigi had a 

cell phone and could call whomever he wanted. All of the other housemates, including 

Carmen, also had cell phones.

At some point, the Montecito house was “getting full” with cockroaches. 

Defendant posited that Luigi and his housemates were bringing the cockroaches in with 

their food. Defendant made some reference joking that they were eating the cockroaches, 

and everyone laughed.

Someone from Luigi’s church told him about a job opportunity. Luigi had decided 

that once he paid off the second loan, it would be better to work anywhere else. 

However, Luigi was nervous because he was supposed to finish the season working for 

defendant.

Luigi paid off the second loan on March 28. The day prior, Luigi called defendant 

and thanked him for the job, but said he had found work elsewhere. Defendant hung up. 

16 While Luigi said defendant paid “the rent,” other testimony shows Luigi meant 

that defendant paid the first month’s rent.
12.

Two hours later, Pilar called Luigi. Pilar was angry and asked how it was possible Luigi 

had “left” defendant. Pilar pointed out that defendant gave him work, a place to live, and 

food. Pilar asked why Luigi was being ungrateful. Luigi responded that defendant had 

mistreated him.

The next day, defendant called Luigi. Defendant said Luigi “[was] f[**]ked,” and 

that he was “going to throw immigration on you.” Defendant said he had copies of 

Luigi’s visa and passport. Defendant also said that when Luigi returned home, 

immigration would pick him up.

When Luigi returned home, his housemates told him that defendant had threatened 

to call immigration on them as well. Luigi and Carmen spoke with police officers.

Luigi never again worked for defendant. In total, Luigi had worked for defendant 

for one month, or possibly a “little bit under a month.” Luigi later applied for and 

obtained a T-Visa.17

Elena H.

Elena H. was living in Tijuana in January 2016. Her husband was injured, and she 

needed to find work, so she decided to look for work in the United States. Pilar told her 

she a knew a man who could provide work in Fresno later in the year. Pilar also knew 

another man who could provide Elena work immediately. Pilar said Elena would be 

working eight to 10 hours per day, making $10 per hour.

Elena traveled to Fresno with her son-in-law Alfonso18 and Carmen. Elena did 

not know anyone besides her two companions. She initially lived with Pilar.

Two or three days after arriving, defendant transported Elena and Alfonso to begin 

a job tying grape vines. Elena and Alfonso only received $30 per day. Elena had to pay 

17 According to the prosecution’s expert, T-visas are a special type of visa for 

trafficking victims that include a work permit.

18 Elena referred to Alfonso C. by the name “Juan.” 
13.

for the transportation. Elena said she only worked enough to pay for the ride.19 Three 

days later, Elena went to work on orange trees for a man named Don Felix.

After Elena had stayed there for two weeks, Pilar said too many people were 

living in her home, and that Elena needed to move out. Pilar told defendant to look for a 

place for them. Pilar told defendant to lend Elena money so she could find a place to 

live.20 Defendant was hesitant to lend Elena money because he did not know her. 

However, Pilar vouched for Elena. Defendant said that because he did not know Elena, 

she needed to give him “something of value.” Elena did not have anything of value. 

When Elena’s visa was mentioned, defendant said the visa was of “no use to him.” Pilar 

took the visas anyway. Defendant told Pilar to put the visas away, and gave Elena $1,000 

for rent and a security deposit in exchange for her agreement to work for him for the rest 

of the “season,” which spanned from March to October.21 Elena agreed to work for 

defendant because he was the person Pilar had told her about in Tijuana. Elena gave her 

passport and travel visa to Pilar, who put them “away.”

Elena moved into a two-bedroom apartment, which had no furniture. Including 

Elena, seven people lived in the apartment. Defendant loaned Elena additional funds to 

purchase a refrigerator. Elena was still working for Don Felix at the time, and her work 

for defendant was not set to begin until March.

As agreed, Elena began working for defendant in March. Defendant told Elena 

she would make $10 per hour and would work nine to 10 hours per day. Defendant paid 

Elena in cash on Saturdays. He deducted $8 per day in transportation costs, $40 for taxes 

and $4 to $6 in check cashing fees from Elena’s pay. Elena never told defendant not to 

19 Carmen testified that this first time they briefly worked for defendant, they were 

paid less than they were once they began working for him again in March.

20 Alfonso testified that the loan was made to Elena, himself, and “everyone” who 

was moving to the apartment.

21 Defendant loaned additional amounts a later date.
14.

cash her checks. However, Elena had not seen any checks until a police officer later 

showed her the last one that she had earned. Other workers were paid by check.

Elena later told law enforcement that defendant paid her the full amount she 

earned, less taxes, $5 for check cashing fees, and $8 for transportation. After working for 

defendant for around two weeks, Elena began making payments to him for the loan.

Defendant was a demanding boss and would yell at Elena. He told Elena she did 

not know how to work and therefore needed to emulate a coworker. Elena felt 

“humiliated” because she believed “nobody should compare you with someone else.” 

Defendant also suggested Elena and two coworkers should be ashamed for falling behind 

in their work compared to another group. When a coworker named Christian was cut by 

a falling ladder, defendant did not help him. Defendant told the workers that they needed 

to work with both hands, and that if they only worked with half of their hands, they 

would get half of a paycheck. Elena did not remember defendant saying anything else 

that caused her to be concerned for her safety.

One time, defendant joked that Elena and others were eating cockroaches for 

lunch.

At one point, defendant told Elena that she had to move again, this time to a fivebedroom house. In the house, Elena had her own bedroom. Defendant lent more money 

to Elena for the house. The rent for the apartment had been $650 per month, but the rent 

for the house was $1,100 per month. Elena would have been comfortable staying in the 

apartment because it was cheaper.

At some point, Elena paid off the loan to defendant.22 Pilar gave Elena her visa 

back the next day. However, Pilar said Elena had not given her a passport. Elena pointed 

22 However, defendant believed two other people, Gerardo and Israel, still owed 

money.
15.

out that she had given Pilar her passport. Pilar said she would check in another place she 

might have placed it. However, Elena never received her passport back.

Because the loan had been paid off, Elena asked if she could now visit her family 

in Tijuana. Defendant asked, “[W]ho was going to stay as responsible party for the house 

that had been rented?”

Two days after Elena received her visa back, defendant was transporting Elena 

and other workers to the job site. Defendant became upset that Luigi had quit. 

Defendant yelled at Luigi over the phone, asking why he had left defendant “with the 

work.” Defendant turned to Elena and other workers, and said, “[T]his goes for you too,” 

and threatened to report them to “immigration.” Elena was concerned because she knew 

her visa did not allow her to work in the United States. Defendant told Elena and others 

that Luigi should move out of the home because it was for his workers only.

Later that day, Elena asked if she could visit her family in Tijuana, and defendant 

said yes. However, defendant changed his mind because someone needed to “stay with 

the responsibility of the” the Montecito house. On cross-examination, counsel asked 

whether defendant had, in fact, simply asked her to sign up for a particular time to leave 

because he could not have everyone leaving at the same time. Counsel asked whether 

defendant asked for people to sign up to “take turns” going to Tijuana, Elena testified: “I 

don’t remember honestly. All I remember was that when I needed to go I couldn’t go.” 

Elena continued, “I wasn’t able to go anymore because [defendant] said how that all of us 

wanted to go ... [a]nd who was ... going to stay and be responsible for the house if we all 

left?” (Italics added.) Defendant also was not sure they would return to work.

The next day, defendant came to the house where Elena was staying, looking for 

Luigi and yelling. Elena and her housemates told defendant Luigi was not there. 

Defendant threw a rock at the door of the home. Elena stopped working for defendant 

that day.
16.

After speaking with law enforcement officers, Elena applied for and was granted a 

T-Visa, which required her to stay in the United States.

Alfonso C.’s Testimony

Elena’s son-in-law, Alfonso C., testified about defendant’s loan, which was to be 

used for housing. Alfonso said he was not required to give defendant anything for the 

loan. Alfonso had a passport but did not give it to defendant. Defendant had paid 

Alfonso in cash, after deducting taxes and transportation costs.

Manuel Manzo’s Testimony

Manuel Manzo worked for defendant’s crew along with Carmen, Elena and Luigi. 

Manuel testified that when they arrived at the field, defendant “would show us how to set 

up the ladder, how we would thin the flowers ....” Manuel also recalled getting 10-

minute breaks.

Sometimes, Carmen, Elena and Luigi would invite Manuel to eat with them, and 

he would. When Manuel was asked to describe the interactions between defendant and 

Carmen, Luigi and Elena, he said they were “very good,” and that defendant “would 

always show them the right way.” If they fell behind defendant would say, “[H]ey ... get 

into the work. Keep a good attitude.” Defendant spoke to them with respect.

Manuel no longer worked for defendant at the time of his testimony. Manuel 

traveled with defendant to court to testify.

Pablo Gonzales

Pablo Gonzales also worked on defendant’s crew thinning pear trees in March 

2016. Pablo recalled Carmen, Elena and Luigi working as part of the crew, but he did not 

personally interact with them. When asked how defendant treated his workers, Pablo 

said “normal,” “[f]ine” and “good.” Defendant would pair the “new guys” with people 

who were more experienced. Defendant would give them a “class before we would go to 

work [on] how you use the tools of your job.” When Carmen, Elena and Luigi were 

shown how to do the work, “they were fine.”
17.

Defendant rode in the same transport vehicle as Carmen, Elena and Luigi. The 

vehicle normally had 10 or 11 people in it. Defendant charged Pablo $8 per day for the 

transportation.

Francisco Alfaro

Francisco Alfaro, a distant cousin of defendant’s, also worked on defendant’s crew 

in March 2016, alongside Elena and Carmen. Francisco was paired with Elena and told 

her how to do the work.

Defendant’s treatment of Carmen and Elena was “[v]ery good.” Defendant told 

them how to do the work and spoke “nicely.”

Micales Gomez

Micales Gomez also worked for defendant thinning pear trees in March 2016. 

However, Micales did not get to know Carmen, Elena or Luigi.

When Micales began her work, defendant gave a “class on how we have to work.” 

The workers would be paired together, so one could explain to another “how to do 

things.” Defendant would supervise the work and was always watching. If he saw 

someone was not doing the work correctly, he would “right away” explain how to do the 

work.

Defendant’s daughter transported Micales to court.

Martin Alcantar

Defendant’s cousin, Martin Alcantar, also worked for defendant’s crew in March 

2016. Martin did not remember Carmen, Elena or Luigi.

Defendant gave workers a “little training and then he’d check to see what we were 

doing.” Defendant treated everyone well.

Detective Demencio Longoria

Detective Demencio Longoria with the Fresno Police Department testified at trial. 

On March 31, Longoria was informed that two individuals had come into the United 
18.

Farm Workers (UFW) office in downtown Fresno asking for help. The individuals were 

very apprehensive about speaking to law enforcement.

Eventually, Detective Longoria was able to speak to the two individuals – Carmen 

and Luigi. Carmen and Luigi gave Longoria an “overview” of the situation. Thereafter, 

Carmen and Luigi were split into separate interview rooms. Longoria remained with 

Carmen, while Luigi was interviewed by an FBI agent.

Carmen told Detective Longoria she had arrived in Fresno on January 11, 2016, 

with the intent to work. After describing her situation, Carmen said that there were three 

other people “in her similar situation that were at the house on Montecito.” Carmen also 

provided defendant’s first name and phone number.

Detective Longoria went to the Montecito house to perform a welfare check on the 

other individuals. By this time, it was after midnight. Elena, Christian and Emma were 

at the house. They said they wanted to leave. The victim advocate from the Equal 

Opportunity Commission (EOC) had a motel room for them to stay in, so they quickly 

collected their belongings. Longoria noticed there were cockroaches all over the kitchen.

The next week, Detective Longoria spoke with Elena. She provided information 

consistent with what Carmen had told him. Emma and Christian were interviewed by 

other detectives, and shortly thereafter traveled back to Mexico.

Detective Longoria contacted the owner of the Hamilton apartment, who provided 

a lease agreement in the name of defendant and his live-in girlfriend, Rose Navarette. 

Navarette was also listed on the lease agreement for the Montecito house.

Law enforcement simultaneously executed search warrants on defendant’s own 

residence on East Butler Street, and Pilar’s residence on South Winery. Detective 

Longoria was present for the search of defendant’s residence, along with Detective David 

Fries and Sergeant Curtis Chastain. In a spare bedroom, Fries located identifications 
19.

belonging to people other than defendant.23 In the living room, Fries located a log with 

names and numbers. In a white Toyota pickup on the premises, officers located paystubs, 

a small notepad with names and pay amounts, and a photocopy of an identification of 

someone other than defendant. The paystubs were for Carmen, Elena and Luigi.

Muhammad Alamari told Detective Longoria that defendant would come to cash 

three or four checks in other peoples’ names. Alamari allowed defendant to cash other 

peoples’ checks because he trusted him.

Detective Longoria interrogated defendant on April 18. Defendant said he met 

“them” – apparently referring to housemates Luigi, Elena, Carmen, Emma and 

Christian – at Pilar’s house. They told defendant they needed work, so he offered them a 

job. They began working for him on March 5. Defendant said he cashed their paychecks 

on their behalf and gave them the cash. Defendant said he charged them $5 per check for 

cashing fees, and $5 to $6 per day for transportation. Defendant denied mistreating the 

individuals who worked for him. However, defendant said he was upset with Luigi for 

quitting without notice.

Defendant said he found them a place to stay at the Hamilton apartment. 

Defendant said he did not loan them the money, but instead paid for the deposit and first 

month’s rent directly for the apartment and thereafter for the house. Initially, Detective 

Longoria testified that defendant said he expected them to pay him back. Thereafter, 

Longoria testified that defendant said he did not charge them for the apartment.

Detective Longoria asked defendant about obtaining the visas and passports in 

exchange for the loan. Defendant said he did not want the visas and was not the one who 

asked for them. Defendant said he knew Pilar had the visas but initially claimed to not 

know why. Later, he said Pilar held the visas for the group because Pilar was nervous 

23 Detective Longoria testified that the people to whom the identifications 

belonged knew defendant had them and gave him permission to possess them.
20.

defendant would hold her responsible for the loan if the group failed to pay it back. Later 

still, defendant said the group wanted Pilar to hold the visas for them. Longoria believed 

these constitute “three different stories,” and suggested defendant was lying.

Defendant told Detective Longoria he liked to help people, but they often did not 

appreciate it. Defendant referenced the fact that he cannot force people to work.

Execution of Search Warrant at Pilar’s Residence

Detectives Sylvia Anaya-Tucker and Linda Anaya participated in the execution of 

the warrant on Pilar’s residence.24 Tucker looked in Pilar’s purse for identification and 

found a plastic bag with several passports.25 Pilar said they belonged to friends of hers.

Detective Anaya delivered the documents to their owners, who were residing at 

the Hamilton apartment. The names of the individuals matched names in the notebook 

found in defendant’s vehicle.

Lorenzo Perez

Lorenzo Perez testified that he was looking for housing, and a friend referred him 

to Elena. Lorenzo rented a room in the house Elena was staying in for $350. Lorenzo 

negotiated with Elena directly for the terms of his rental. Lorenzo observed that all three 

of the residents had cell phones. Three days after Lorenzo moved in, Elena and the other 

residents “took off” in the early morning.

On cross-examination, Lorenzo testified that he had known defendant for several 

years and was going to begin working for him on Saturdays. Defendant told him there 

was a room available at the house.

After Elena and the other residents left, Lorenzo found additional renters. The 

additional renters did not work for defendant.

24 We will refer to Detective Sylvia Anaya-Tucker as “Tucker” and Detective 

Linda Anaya as “Anaya” to avoid confusion.

25 Detective Tucker testified she “believe[s]” that other documents like visas and 

permits were in the bag as well.
21.

Prosecution Expert Stephanie Richard

Stephanie Richard testified as an expert for the prosecution.26 Richard works as 

the policy and legal services director for the Coalition to Abolish Slavery and 

Trafficking. Richard testified that she has had “clients” who have not lived with their 

“trafficker” and have had cell phones, yet were still tied to their trafficker through an 

“invisible bond[].” She also testified that “labor trafficking ... can be for a very short 

period of time.” Forced labor can occur even without physical violence or restraint but 

could instead involve coercion. Traffickers sometime take advantage of a victim’s 

immigration status. Often, victims of labor trafficking do not ask for help.

Richard testified that under “the California statute ... if you take someone’s 

documents, if that’s what keeps them working even for one day, then you have labor 

trafficking.” Alternatively, “if someone takes on a debt ... and they feel like they have to 

work at a specific job to pay back that debt, that can be labor trafficking.”

The prosecutor presented Richard with a hypothetical similar to the facts of the 

present case and asked if it was consistent with human trafficking. She testified that, 

under the circumstances described, if the victim worked one day or more because of 

threats to report the person to immigration, then it would meet the legal definition of 

labor trafficking.

Richard said an individual can voluntarily agree to put up their Visa as collateral 

for a loan. However, it is illegal for an employer to take an employee’s immigration 

documents. Even where the individual voluntarily agrees to put up their visa as collateral 

26 “In a criminal action, expert testimony is admissible by either the prosecution or 

the defense regarding the effects of human trafficking on human trafficking victims, 

including the nature and effect of physical, emotional, or mental abuse on the beliefs,

perceptions, or behavior of human trafficking victims.” (Evid. Code, § 1107.5, 

subd. (a).)
22.

for a loan, that circumstance could create a “pressure[d]” environment to keep working 

for that specific employer.

Richard said it is common for employers to provide employees transportation to 

and from work and to deduct money for the service.

Prosecution Expert Dr. Susie Baldwin

Dr. Susie Baldwin testified as an expert for the prosecution. Dr. Baldwin, a 

medical doctor, is president of the board of H.E.A.L. Trafficking.27 Dr. Baldwin was not 

familiar with the facts of the case and testified generally about coercion and trauma.

Defense Expert Dr. Andrew Alvarado

Dr. Andrew Alvarado testified as an expert on behalf of the defense.28 

Dr. Alvarado testified that over the last 20 to 25 years, there has been a “dramatic shift in 

who hires ... farm workers.” The vast majority of farm workers are employed by farm 

labor contractors, rather than the farm owner-operator. The farm labor contractor then 

hires individuals to supervise, transport, evaluate and dismiss the farm workers. The 

extent of supervisory personnel and structure depends on the size of the farm labor 

contractor.

The “bottom” rung of the supervisory hierarchy is a “crew leader.” Regardless of 

size, a farm labor contractor will at least have a crew leader. Crew leaders work directly 

with the crews performing the farm labor. The crew leader is with the farm workers 

“constantly” rather than merely periodically. They are responsible for addressing any 

worker performance that is “below standard.” Crew leaders are “very frequently 

involved in the hiring of the workers and in transporting the workers, and in some cases 

providing housing ....”

27 The acronym stands for Health, Education, Advocacy and Linkage.

28 Dr. Alvarado did not review police reports or transcripts concerning this case.
23.

Dr. Alvarado’s own study29 of farm workers indicated that farm workers’ pay is 

not set by the crew leader, but instead by the farm labor contractor.

Jury Instructions

The court’s jury instructions on human trafficking are reproduced, in part, below:

“The defendant is charged in Counts One, Two, and Three, with 

human trafficking in violation of the law. To prove the defendant guilty of 

these crimes the People must prove one, the defendant either deprived 

another person of personal liberty or violated another person’s personal 

liberty; and two, when the defendant acted, he intended to obtain forced 

labor[] services.

“Depriving or violating another person’s personal liberty as used 

here includes substantial and sustained restriction of another person’s 

liberty accomplished through force, fear, fraud, deceit, coercion, duress, 

menace, and is under circumstances in which the person receiving or 

perceiving the threat reasonably believes that it is likely the person making 

the threat would carry it out.

“Forced labor or services as used here means labor or services that 

are performed or provided by a person and are obtained or maintained 

through force, fraud, duress or coercion or equivalent conduct that would 

reasonable overbear the will of the person.

“Duress means a direct or implied threat of force, violence, danger, 

hardship or retribution that is enough to cause a reasonable person to do or 

submit to do something that he or she would not otherwise submit to do.

“Duress also includes a direct or implied threat to destroy, conceal, 

remove, confiscate or possess any actual or purported passport or 

immigration document of the other person or knowingly destroying, 

concealing, removing, confiscating or possessing any actual or purported 

passport or immigration document of the other person.”

DISCUSSION

I. Defendant has Failed to Establish Deficient Performance of Counsel

Defendant claims his counsel acted in a constitutionally deficient manner with 

respect to obtaining expert testimony at trial.

29 Dr. Alvarado’s most recent study was performed in 2001 or 2002.
24.

A. Additional Background

An off-the-record discussion occurred on the morning of August 28, 2018, near 

the end of trial. The court described the prior discussion as follows:

“[A]s I understand what [defense counsel has] told me so far this morning, 

and I’m going to put that on the record now, that though this [expert] 

witness was scheduled to appear today for an offer of proof regarding the 

foundation for his testimony, he communicated with your office – and 

though he had agreed to come previously, he changed his requested 

reimbursement rate. And also told you that ... the soonest he could be 

available for this trial is approximately four weeks.”30

The court further noted that an Evidence Code section 402 hearing was scheduled 

for the expert that morning (i.e, August 28, 2018.)

The court asked defense counsel when he had informed the expert that he needed 

to be in Fresno today. Counsel responded, “That was on the 10th of August. I sent our 

retainer for him and also let him know that we had given the court a ten-day estimate for 

our trial. And that we’d start calling witnesses August the 20th, 2018.”

Defense counsel conveyed his understanding that the expert would not be 

available to testify for at least three to four weeks. The court said it would send the jury 

home until the next morning and give defense counsel an opportunity to let his expert 

know he “needs to be here either tomorrow or Thursday at the latest.” If the expert 

agreed, then “problem solved.” “If not, then we’ll proceed to the next step.”

The court had a murder trial set to begin as soon as defendant’s case was over. 

That trial would take until the end of October to complete. The prosecutor had another 

jury trial scheduled in October, which she believed was scheduled for the “end of 

October.” As a result, the court concluded the earliest the jury could be called back 

would be the week of November 5th.

30 Defense counsel clarified the expert said “several weeks.”
25.

The court was concerned about delaying the trial substantially because the court 

would have to explain to the jury there was a “problem with a witness.” The court would 

then ask if the jury could return in, say, four weeks. There was the possibility the jury 

would say “no,” they are not available. In that scenario, the jury would be aware that 

there was a “critical witness out there who will not be testifying. And the damage is 

done. Because they are going to speculate as to who would call the witness and what 

would happen. And that would practically force mistrial.” The court said it did not 

“want to go there.”

The court stated that its tentative ruling was that “unless [the defense expert] 

witness can be here tomorrow or the next day, we’re going to proceed to closing 

argument and instructions tomorrow morning.”

The court called in the jury and told them they were to come back tomorrow 

morning. The court told the jury that it anticipated they would hear instructions and 

argument tomorrow and potentially one more witness.

After the jury left, the court told counsel they would return that afternoon to 

discuss how to proceed.

In the afternoon session, defense counsel said he called the expert three times, 

including a cell phone number and an office number. Defense counsel’s paralegal called 

him twice and sent text messages. Defense counsel had not received a response from the 

expert.

The court said that if the witness became available by tomorrow, he could testify. 

The court then asked defense counsel what he was requesting if the expert was not 

available. Defense counsel requested a continuance of trial to a time agreed upon by the 

jury to accommodate the expert. If the court denied that request, the defense wanted a 

mistrial. He argued that “proceed[ing] without an expert is highly prejudicial to my 

client because of the nature of the offenses where the law[’]s in [a] state [of flux.] And if 
26.

the experts are the ones that are keeping more up with the changes and what the new 

definitions of duress and coercion and – what the definition of these offenses are.”

The court asked for an offer of proof or an explanation of what the expert would 

address. Counsel said the expert “would address whether our review of the police reports 

and the preliminary hearing transcript – whether, in fact,... there [were] activities that 

amounted to human trafficking or not or whether there were other kinds of actions that 

were involved here.”

The prosecutor objected to a continuance “[b]ecause it would prejudice the 

People’s case in that the jurors would be distanced from the testimony that they are about 

to consider.” The prosecutor also objected to a mistrial because it was “speculative” 

whether the expert will even “be retained.”31 The prosecutor also noted it was unknown 

whether the witness would even qualify as an expert. The prosecutor said defense 

counsel’s offer of proof suggests the expert’s testimony would be “in violation of People 

v. Sanchez.” (See People v. Sanchez (2016) 63 Cal.4th 665.)

The court denied the request for a continuance because it was uncertain whether 

the expert would testify and when. It was uncertain whether the defense could lay a 

proper foundation for the witness’ testimony. Moreover, the court observed that a fourweek delay would prejudice the prosecution because it was “simply not reasonable” to 

ask the jurors to remember four weeks back about important criteria such as the 

demeanor of witnesses.

The court also denied the request for a mistrial “for the same reasons.” The court 

observed that due to the “ambiguities” surrounding whether the defense could lay a 

proper foundation for the expert meant that “we could easily end up at the same place” if 

a new trial was held. The court “recognize[d]” defendant’s due process right to a fair 

31 Presumably, this is a reference to the possibility that the expert and defense 

counsel would be unable to resolve the fee dispute.
27.

trial and to have an effective defense, and felt it was “honoring” those considerations 

because “the most effective trial he can get is the trial that we’re in.” The court also 

reiterated its concern that once the jury was asked if it could return later to accommodate 

a witness, it would then know that there was a witness who had not testified.

The next day, the court proceeded to give the jury instructions, followed by 

closing argument by counsel.

B. Law

“A criminal defendant’s federal and state constitutional rights to counsel (U.S. 

Const., 6th Amend.; Cal. Const., art. I, § 15) include the right to effective legal assistance. 

When challenging a conviction on grounds of ineffective assistance, the defendant must 

demonstrate counsel’s inadequacy. To satisfy this burden, the defendant must first show 

counsel’s performance was deficient, in that it fell below an objective standard of 

reasonableness under prevailing professional norms. Second, the defendant must show 

resulting prejudice, i.e., a reasonable probability that, but for counsel’s deficient 

performance, the outcome of the proceeding would have been different. When 

examining an ineffective assistance claim, a reviewing court defers to counsel’s 

reasonable tactical decisions, and there is a presumption counsel acted within the wide 

range of reasonable professional assistance. It is particularly difficult to prevail on an 

appellate claim of ineffective assistance. On direct appeal, a conviction will be reversed 

for ineffective assistance only if (1) the record affirmatively discloses counsel had no 

rational tactical purpose for the challenged act or omission, (2) counsel was asked for a 

reason and failed to provide one, or (3) there simply could be no satisfactory explanation. 

All other claims of ineffective assistance are more appropriately resolved in a habeas 

corpus proceeding. [Citations.]” (People v. Mai (2013) 57 Cal.4th 986, 1009.)

When a defendant’s claim of ineffective assistance of counsel requires 

investigation of evidence outside the record, it can only be addressed in a habeas corpus 

proceeding. (See People v. Williams (2013) 56 Cal.4th 630, 691.)
28.

C. Analysis

Defendant argues his counsel was ineffective because he gave the expert a 10-day 

window in which he would be called to testify, and date of the Evidence Code section 

402 hearing fell outside of that 10-day window. Specifically, he argues that, with trial 

scheduled for August 13, 2018, “the expert was under [the] belief he could be called no 

later than August 23, 2018.” Therefore, “the specific time of the [Evidence Code section] 

402 hearing, which was set five days after the [10-]day window, was never 

communicated to the expert.”

Defendant is factually incorrect in an important respect. Counsel said he gave the 

expert a 10-day window beginning August 20th – i.e., the date the defense expected to 

begin calling witnesses (not August 13, the date the trial began). While some parts of the 

discussion were confusing, the court clearly asked, “[Y]ou then told your expert on 

approximately August 10th that the trial was starting on August 20th and would be 

approximately ten days of testimony which would give us the closing date of the 31st of 

August?” Defense counsel replied, “That’s correct.”32 Therefore, the date of the 

scheduled Evidence Code section 402 hearing – August 28 – did fall within the 10-day 

window counsel had communicated to the expert.

Defendant further faults counsel because his last contact with the expert was on 

August 10, 2018, which was 18 days before the scheduled Evidence Code section 402 

hearing. But the court observed that defense counsel was “in touch with [the expert] 

witness this most immediate Friday the 24th of August ....” That is when the witness 

said he was unavailable to testify. We cannot say counsel is constitutionally deficient 

when he puts an expert on notice of being called during a 10-day window, and then 

32 When the prosecutor noted that trial began on August 13, defense counsel said: 

“What I’m saying, Your Honor, when I will start calling witnesses, so I gave the [P]eople 

the 13th that week.” (Italics added.)
29.

communicates with the witness four days before being scheduled to testify during that 

10-day window.33

Defendant also argues that counsel is “expected to get the billing arrangements 

worked out ahead of time.” However, defendant has failed to show that counsel was 

deficient in this regard. The court recounted the off-the-record discussion as follows: 

“[T]hough [the expert] had agreed to come previously, he changed his requested 

reimbursement rate.”34 (Italics added) In other words, it appears defense counsel did get 

the billing arrangements worked out ahead of time, only to have the expert try to change 

the arrangements last minute. Therefore, defendant has not established deficient 

performance.

Because defendant has not established deficient performance, we do not reach the 

issue of prejudice.

DISPOSITION

The judgment is affirmed.

33 Defendant contends counsel did not seek an additional expert. However, the 

defense did have one expert testify at trial: Dr. Alvarado. Presumably, defendant is 

arguing that defense counsel did not try to get another expert to testify instead of the 

second, unavailable expert. But defendant provides no record citation for this assertion. 

Nor does it appear defense counsel could have obtained a witness who could testify in the 

existing expert’s stead given that he only learned of the problem a few work days before 

the scheduled Evidence Code section 402 hearing, and the court denied the request for a 

continuance of trial.

34 Granted, this is defense counsel’s version of events. However, to the extent 

defendant would seek to disprove counsel’s assertions with evidence outside the record, 

that cannot be done on direct appeal. (See People v. Arce (2014) 226 Cal.App.4th 924, 

930.)
30.

POOCHIGIAN, Acting P.J.

WE CONCUR:

DETJEN, J.

PEÑA, J.