Filed 4/25/22 P. v. Alvarez CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,

 Plaintiff and Respondent,

v.

ALAIN ALVAREZ,

 Defendant and Appellant.

2d Crim. No. B313110

(Super. Ct. No. 2020013105)

(Ventura County)

Alain Alvarez appeals the judgment entered after a jury 

convicted him of inflicting corporal injury on a person with whom 

he had a dating relationship (Pen. Code,1 § 273.5, subd. (a)). The 

trial court granted appellant’s request to reduce the charge to a 

misdemeanor and placed him on three years of probation with 

terms and conditions including that he serve 90 days in county 

jail. Appellant raises claims of evidentiary, prosecutorial, and 

cumulative error. We affirm.

1 All statutory references are to the Penal Code unless 

otherwise noted.
2

STATEMENT OF FACTS

Prosecution

Appellant and A.R. met in January 2020 and began dating. 

In the early morning hours of May 6, 2020, Ventura County 

Deputy Sheriff Conrad Meadows and his partner were dispatched 

to appellant’s apartment regarding a noise complaint. The 

deputies entered the apartment and saw appellant, his mother 

Columba Ceja, and his sister L., who was 17 at the time of trial. 

While searching the apartment for other people, Deputy 

Meadows opened a downstairs bathroom door and saw A.R.

inside the bathroom. A.R. had bruises and scratch marks on her 

chest, her nose was bleeding, and blood was on the bathroom 

wall. 

When asked about her injuries, A.R. said she had been 

pushed into a wall as she and Ceja attempted to physically 

restrain appellant, who was highly intoxicated, from leaving the 

apartment. In phone calls appellant made to A.R. from jail after 

his arrest, A.R. said “you kinda like uppercutted me” and “got my 

fuckin’ nose and my lip.” At trial, A.R. testified that she and 

appellant had been drinking on the night of the incident and that 

her injuries were the result of a fall on the stairs outside 

appellant’s apartment as she attempted to help appellant when 

he stumbled. She denied that appellant had punched her and 

claimed that her blood somehow ended up on the bathroom wall 

while she was cleaning her face. 

L. testified that she was sleeping upstairs when she heard 

appellant arguing with A.R. and Ceja. L. went downstairs and 

saw appellant moving toward the door as if he were about to 

leave the apartment. L. persuaded appellant to stay and went 

back upstairs. She subsequently heard a thump and went back 
3

downstairs after the deputies arrived. L. admitted telling one of 

the deputies that she saw appellant punch A.R. in the face and 

body and then follow her into the bathroom.2 L. claimed that she 

had lied by saying what she thought the deputy wanted to hear. 

Defense

Ceja testified that on the night of the incident she and A.R.

had worked together to calm appellant down and prevent him 

from leaving the apartment. Ceja never saw appellant hit or act 

aggressively toward A.R. that night and she had no idea how 

A.R.’s blood ended up on the bathroom wall. 

Miguel Angel Sanchez-Hernandez lived in appellant’s 

apartment building when the incident took place. On the night of 

May 5 Sanchez saw appellant and A.R. together outside on the 

stairway, heard a scream, and then saw that A.R. had fallen. 

When Sanchez approached appellant and A.R. and asked them if 

everything was okay, they both said they had slipped on the 

stairs and laughed. Sanchez did not see any bleeding or injury to 

A.R.’s face. 

DISCUSSION

A.R.’s Prior Inconsistent Statements

Appellant contends the trial court erred in denying his 

request to exclude A.R.’s prior inconsistent statements under 

Evidence Code section 1235. He asserts that the statements, 

which were made during phone calls he had with A.R. while he 

was in jail awaiting trial, should have been excluded as a 

sanction for delayed discovery because they were not timely 

produced to appellant in accordance with section 1054.7. We are 

not persuaded.

2 Bodycam footage of L.’s statements to the deputies at the 

scene was played for the jury at trial. 
4

The prosecution must disclose to the defense any relevant 

evidence “if it is in the possession of the prosecuting attorney or if 

the prosecuting attorney knows it to be in the possession of the 

investigating agencies.” (§ 1054.1.) Such evidence must be 

produced at least 30 days prior to trial absent good cause for an 

exception. (§ 1054.7.) If relevant evidence is not timely 

produced, the trial court may impose any appropriate sanction

“including, but not limited to, immediate disclosure, contempt 

proceedings, delaying or prohibiting the testimony of a witness or 

the presentation of real evidence, continuance of the matter, or 

any other lawful order. Further, the court may advise the jury of 

any failure or refusal to disclose and of any untimely disclosure.” 

(§ 1054.5, subd. (b).) 

“Though a trial court has discretion in these matters, that 

discretion is not unfettered. ‘The court may prohibit the 

testimony of a witness pursuant to subdivision (b) only if all other 

sanctions have been exhausted.’” (People v. Superior Court 

(Mitchell) (2010) 184 Cal.App.4th 451, 459, quoting § 1054.5, 

subd. (c).) This includes “testimony from the People’s witnesses

regarding discovery not previously provided.” (Ibid.) We review 

the trial court’s rulings on this issue for an abuse of discretion. 

(People v. Prince (2007) 40 Cal.4th 1179, 1232.)

After his arrest, appellant spent approximately one week in 

custody. His trial commenced more than two months later. The 

prosecutor first received the recordings of appellant and A.R.’s

three jailhouse calls less than a week prior to trial and 

immediately produced them to the defense. In those calls, A.R. is 

heard telling appellant “you kinda like uppercutted me” and “got 

my fuckin’ nose and my lip.” The prosecutor explained that he 

had not considered the possibility of recorded jailhouse calls until 
5

he discovered calls that had been made in a different case. 

Realizing that appellant may have made calls because he was in 

custody for more than one or two days, the prosecutor made a 

request for the recordings of any such calls. The request was 

made on September 21, 2020, the prosecutor received the 

recordings on September 29, and produced them to the defense 

the following day. 

At the urging of the defense, the court indicated it would 

exclude the evidence as a sanction for the discovery violation. 

The court told the prosecutor, however, that “if you think that as 

the trial progresses there’s some event, testimony or otherwise 

that should cause the Court to re-examine that ruling, I’ll 

certainly entertain it at that time.” 

After A.R. testified that appellant had not hit her, the 

prosecutor presented her with a transcribed copy of the phone 

call to determine if it would refresh her recollection. When asked 

whether she had told appellant that he “uppercut” her, A.R. 

replied that she did not recall making the statement and 

suggested she may have been referring to her fall down the 

stairs. Following a hearing outside the jury’s presence, the court 

determined that the portion of the call in which A.R. stated that 

appellant had hit her should be admitted to impeach her 

testimony at trial. The court made clear, however, that the 

phone calls were otherwise still subject to exclusion as a sanction 

for the discovery violation. 

The court did not abuse its discretion. The statutory 

scheme governing discovery in criminal cases is intended “[t]o 

promote the ascertainment of truth in trials.” (§ 1054, subd. (a).) 

This purpose would not be met if the prosecution was precluded 
6

from impeaching A.R. with prior statements that directly 

contradicted what she testified to at trial.

Moreover, the exclusion of testimony is not a proper 

sanction for a discovery violation “absent a showing of significant 

prejudice and willful conduct motivated by a desire to obtain a 

tactical advantage at trial. [Citation.]” (People v. Jordan (2003) 

108 Cal.App.4th 349, 358.) Appellant makes neither showing 

here. It is essentially undisputed that the discovery violation 

was neither willful nor motivated by a desire to obtain a tactical 

advantage. Contrary to appellant’s claim, the delayed discovery 

of the phone calls did not amount to a violation of his

constitutional rights because the evidence was not favorable to 

the defense. (People v. Ochoa (1998) 19 Cal.4th 353, 473.) 

The defense also received the discovery a week before A.R. 

testified, so it had ample opportunity to prepare for the 

possibility that her prior statements would be admitted against 

her for purposes of impeachment. (See People v. Verdugo (2010) 

50 Cal.4th 263, 283 [defendant failed to demonstrate prejudice 

where a witness’s prior oral statement regarding a threat were 

disclosed to the defense “nearly [one] week” prior to the witness’s 

testimony because “defense counsel had ample time to prepare a 

cross-examination of [the witness] on this point” and “[d]efendant 

does not state specifically what counsel would have done 

differently if [the witness’s] oral statement had been disclosed 

sooner”].) Moreover, A.R.’s trial testimony was inherently

incredible and her statements to appellant on the phone were 

essentially corroborated by L.’s statements to the deputies. 

Because it is not reasonably probable that appellant would have 

achieved a more favorable result had the challenged evidence 

been excluded, his claim fails for lack of prejudice. (People v. 
7

Watson (1956) 46 Cal.2d 818, 836; Verdugo, at p. 280 [applying 

Watson harmless error standard to discovery violation under 

§ 1054.1].)

Prosecutorial Misconduct

Appellant contends the prosecutor committed misconduct, 

in violation of his constitutional rights, by disparaging defense 

counsel during closing argument. We disagree.

A claim of prosecutorial misconduct is governed by the 

abuse of discretion standard of review. (People v. Alvarez (1996) 

14 Cal.4th 155, 213.) “‘“A prosecutor commits misconduct if he or 

she attacks the integrity of defense counsel, or casts aspersions 

on defense counsel.” [Citations.] “In evaluating a claim of such 

misconduct, we determine whether the prosecutor’s comments 

were a fair response to defense counsel’s remarks” [citation], and 

whether there is a reasonable likelihood the jury construed the 

remarks in an objectionable fashion [citation].’ [Citation.] ‘To 

prevail on a claim of prosecutorial misconduct based on remarks 

to the jury, the defendant must show a reasonable likelihood the 

jury understood or applied the complained-of comments in an 

improper or erroneous manner. [Citations.] In conducting this 

inquiry, we “do not lightly infer” that the jury drew the most 

damaging rather than the least damaging meaning from the 

prosecutor’s statements.’” (People v. Seumanu (2015) 61 Cal.4th 

1293, 1336-1337.) 

“[T]o preserve a claim of prosecutorial misconduct for 

appeal, ‘“‘a criminal defendant must make a timely and specific 

objection and ask the trial court to admonish the jury to 

disregard the impropriety.’” [Citation.] The lack of a timely 

objection and request for admonition will be excused only if either 
8

would have been futile or if an admonition would not have cured 

the harm.’” (People v. Hoyt (2020) 8 Cal.5th 892, 942–943.) 

In his closing argument, the prosecutor discussed how L.’s 

trial testimony differed from what she told the deputies at the 

scene and asked the jury to compare her demeanor in the 

bodycam video to her demeanor on the stand. After referring to 

L.’s testimony that she met with defense counsel prior to her 

testimony, the prosecutor stated: “We don’t know what they 

talked about. But she said they talked for at least 20 minutes. 

Can you imagine the stress that girl went through when she has 

to walk back that statement?” Defense counsel objected to the 

remark as “[i]mpugning the integrity of defense counsel” but did 

not request an admonition. After the court overruled the 

objection, the prosecutor added: “I don’t know what [defense 

counsel] talked to [L.] about, but [L.] had to walk back—she had 

to explain why . . . what she told the officer . . . was a lie.” 

In addressing the issue in her closing argument, defense 

counsel characterized the prosecutor’s comments as 

“unprofessional and really kind of desperate” and added that “for 

[him] to say that me preparing and interviewing witnesses is 

unethical or for him to insinuate that is offensive.” On rebuttal, 

the prosecutor made clear to the jury that he “did not say 

[defense counsel] did anything unethical” and added “[the] 

defense has no obligation to produce any evidence, but they did. 

You heard from [Ceja]. You heard from [Sanchez]. But we didn’t 

hear the conversation they had with [L.]” 

Appellant fails to demonstrate that the prosecutor 

committed misconduct, much less that the error was prejudicial. 

He only raised an objection to the prosecutor’s first comment and 
9

did not request any admonitions, so his claim is forfeited. (People 

v. Hoyt, supra, 8 Cal.5th at pp. 942–943.) 

In any event, the challenged remarks did not amount to 

misconduct. “‘Prosecutors may attack the defense case and 

argument. “Doing so is proper and is, indeed, the essence of 

advocacy.”’” (People v. Krebs (2019) 8 Cal.5th 265, 342.) Even if 

the prosecutor’s comments could be fairly characterized as 

disparaging, they were less so than those the California Supreme 

Court has previously upheld. (See, e.g., People v. Stanley (2006) 

39 Cal.4th 913, 952 [no misconduct where prosecutor argued 

counsel “‘imagined things that go beyond the evidence,’” was on 

an “‘imaginary trip,’” and told the jury a “‘bald-faced lie’”]; People 

v. Medina (1995) 11 Cal.4th 694, 759 [no misconduct where 

prosecutor said counsel can “‘twist [and] poke [and] try to draw 

some speculation, try to get you to buy something’”]; People v. 

Gionis (1995) 9 Cal.4th 1196, 1215-1216 [prosecutor argued that 

defense counsel was talking out of both sides of his mouth]; 

People v. Bell (1989) 49 Cal.3d 502, 538 [prosecutor argued that 

defense counsel’s job is to “‘confuse’” jurors and “‘throw sand’” in 

their eyes and that counsel “‘does a good job of it’”].) 

Moreover, the prosecutor made clear that the jury should 

not construe his remarks as disparaging defense counsel and 

appellant offers nothing to indicate that the jury “‘drew the most 

damaging rather than the least damaging meaning from the 

prosecutor’s statements.’” (People v. Seumanu, supra, 61 Cal.4th 

at pp. 1336-1337.) In addition, L.’s statements that she saw 

appellant hit A.R. were corroborated by A.R.’s statements to 

appellant and L.’s attempts at trial to retract her prior 

statements were not persuasive. Given the strong evidence of 

appellant’s guilt, any error arising from the prosecutor’s 
10

challenged comments was harmless regardless of the standard of 

review.

Cumulative Error

Appellant contends that the cumulative effect of the alleged 

errors compels reversal of the judgment. Because we reject each 

assignment of error, appellant’s claim of cumulative error 

necessarily fails. (People v. Avila (2006) 38 Cal.4th 491, 608.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED.

PERREN, J.

We concur:

GILBERT, P. J.

YEGAN, J.
11

David R. Worley, Judge

Superior Court County of Ventura

______________________________

Mi Kim, 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, Senior 

Assistant Attorney General, Zee Rodriguez, Supervising Deputy 

Attorney General, and Michael C. Keller, Deputy Attorney 

General, for Plaintiff and Respondent.