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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

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. B3 13110 (Super. Ct. No. 2020013105 ) ( Ve ntura 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 § 2 73.5
, 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 j ail. Appellant raises claim s 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 a nd 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 s aw appell ant, his mother
Columb a Ceja , and his sister L ., who was 17 at the time of trial. While searching the apartment for other peop le, Deputy Meadows opened a downstairs bathroom door and saw A.R.
inside the bathroom. A .R. had b ruises 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 apart ment. In phone call s 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 a nd 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
claim ed that her blood somehow ended up on the bathroom wall
whil e she was clea n ing 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 appellan t to stay and went back upstair s. She subsequently heard a thump and went back3

downsta irs 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 t he bathroom. 2 L. claimed that she
had lied by saying what she though t 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 l aughed. Sanchez did not see any bleeding or injury to A.R.’s face.
DISCUSSION

A.R.’s Prior Inconsistent Statements
A ppellant contends the trial court erred in denying his request to exclude A.R.’s prior inconsistent statements under
Evi dence Code section 123 5

. He asserts that the s tatements
, 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 appell ant in a ccordance with section 1054.7 . We are not pe rsuaded

.

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 a ny relevant
evidence “if it is in the possession of the prosecuting attorney or if
the prosecuting attorney know s it to be in the possession of the investigating agencies. ” ( § 1 054.1.) Such evidence must be

pro duced at least 30 days prior to trial absent good cause for an exception. (§ 1054.7.) I f relevant evidence is not timely produced, the trial court may impose a ny appropriate sanction “including, but not limited to, immediate disclosure, contempt proceedings, delaying or prohib iting the testimony of a witness or the presentation of real evidence, continuan ce 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 wee k in custody

. His trial commen ced more than two months later. The

prosec utor first received the recordings of appellant and A. R.’s
three jailhouse calls less than a week prior to t rial and
immediatel y produced them to the defense. In t hose calls, A.R. is
heard telling appellant “you kinda like upp ercutted me” and “got my fuckin’ nose and my lip.” The prosecutor explained tha t he
had not considered the possibility of recorded jailhouse calls until5

he discovered calls that had been made in a different ca se. Realizing that appellant may have made calls because he was in custody for more than one or two days, the pros ecutor made a request for the record ings of any such calls. The request was
made on September 21, 2020, the prosecutor received t he recordings on September 29, and produced them to the defense
the following day.
A t 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
certai nly entertain it at that time.”
After A.R. testif

i ed that appellan t 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 dow n the
stairs. Foll owing a hearing outside the jur y’s presence, the court
determined that the portion of the call in w hich A.R. stated that appellant had hit her should be admit ted to impeach her testimony at trial

. The court made clear, however, that the phone calls were otherwise still subject to exclusion as a sancti on for the discovery violation.
The court di d not abuse its discretion. The statutory scheme governing discovery in criminal cases is intended “[t]o promote the ascert ainment of truth in trials

. ” (§ 1054 , subd. (a).) This purpose would not be met i f the prosecution was precluded6

from impeach ing 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 advan tage 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 n either willful n or motivated by a desire to obtain a tactical advantage

. Contrary to appellant’s claim, the delay ed 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 35 3, 473.)
The defense also received the discovery a week before A.R.
testif i ed , 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. Verdu go (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 pr epare 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] or al statement had been disclosed sooner”].) Moreover, A.R.’s trial testimony was inherently
incredible and her statements to appellant on the pho ne 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 ex cluded, 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 mis conduct

, in violation of his constitutional rights, by dis paraging 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 deter mine 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 sh ow 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 damagin g 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 cour t to admonish the jury to disregard the impropriety.’” [Citation.] The lack of a timely objection and request for admonition will be excused only if either8

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 pr osecutor discussed how L.’s trial testimony diff

ered from what she told the deputies at the scene and asked the jur y to compare her demeanor in the bodycam video to her demeanor on the stand. Aft er referring to
L.’s testimony that she met with defense counsel prio r to her testimony, the prosecutor state d : “We don’t know what they talked about. But she said they talked for at least 20 minutes. Can you imagine the s tress that girl went through when she h as 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 t he court overrul ed the objection, the prosecutor added : “I don’t know w hat [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 ar gument, defense counsel characterized the prosecutor’s comments as
“u nprofessional and really kind of desperate ” and added that “for [him] to say that me preparing and interviewing witnesses is

un ethical or for him t o insinuate that is offensive.” On rebuttal, the prosecutor made clear to the jury that he “did not say [def ense counsel] did anything unethical ” an d added “[the]
defense has no ob ligation to produce any evidence, but they did.
You heard from [Ceja]. You heard from [Sanchez]. But we didn ’t
hear the c onversation they had with [L.]” Appellant fai ls 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 and9

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

v. Hoyt

, supra , 8 Cal.5t h at pp. 942

– 943.) In any event, the challenged re marks 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
dis paraging, they were le ss so than t hose 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 wh ere 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 [ prosecu tor 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 i ndicate 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 attempt s at trial to retract her prior

statements were not pers uasive. Given the strong evidence of

a ppellant’s guilt, any error arising from the prosecutor’s10

challenged comments was harmless regardless of the standard of
review.
Cumulative Error Appellant contends that the c umulative 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, Seni or Assistant Attorney General, Zee Rodriguez , Supervising Deputy Attorney General, and Michael C. Keller , Deputy Attorney General, for Plaintiff and Respondent.