People v. Alvarez CA4/1 ( 2023 )

Filed 12/5/23 P. v. Alvarez CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D082998
Plaintiff and Respondent,
v. (Super. Ct. No. FSB20000741)
REGGIE JOSHUA ALVAREZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Bernardino
County, Jerry E. Johnson, Judge. Affirmed.
Elisa A. Brandes, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland, Assistant Attorney General,
Christopher P. Beesley and Michael J. Patty, Deputy Attorneys General, for
Plaintiff and Respondent.
INTRODUCTION
Reggie Joshua Alvarez appeals his conviction for rape (Pen. Code,
§ 261, subd. (a)(2)), asserting the trial court erred by admitting the victim’s
incriminating hearsay statements to law enforcement in violation of his right
to confrontation under the Sixth Amendment. Because we conclude the
admission of these statements, though improper, was harmless beyond a
reasonable doubt, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On an early morning in February 2020, Jane Doe was standing alone
on the sidewalk of a major San Bernadino street, behaving oddly. A
surveillance camera captured the events that followed. Over the course of an
hour, she can be seen (on dark, grainy security footage1) pacing, picking up
items from the sidewalk, walking out into the street, waving at passing cars,
and interacting with passers-by. At 2:15 a.m., she appears to fall backward
to the ground without any cause. Within a minute, Alvarez walks up to Jane
Doe. After the two interact for several minutes, Jane Doe walks away. They
come together again before disappearing out of view toward the sidewalk
planters at 2:21 a.m.
At this time, Deputy Angelini of the San Bernardino County Sheriff’s
Department was patrolling the street in a marked patrol vehicle. Angelini
stopped to briefly speak to a man with a bicycle at around 2:22 a.m. Once
their conversation ended, the man told Angelini he “should head down the
street,” as “he pointed” down the street toward Jane Doe and Alvarez, “and
said that he heard a female screaming for help.” Angelini headed in that
1 We have reviewed the footage from the surveillance camera and the
body-worn cameras of the responding officers.
2
direction. As he drove slowly with his windows rolled down, he heard a
woman “screaming for help.” Angelini then saw Jane Doe “was bent over at
the waist with her pants and her underwear down at her ankles” and
“Alvarez behind her having sexual intercourse with her.”
As Deputy Angelini exited his patrol vehicle, Jane Doe yelled to him,
“Help me. Help me. He’s raping me.” According to Angelini, as she made
that statement, Alvarez “backed away from her, removed his penis from her
vagina,” “pulled up his pants and started to walk . . . [a]way from [Angelini].”
When Alvarez did not respond to Angelini’s question of what he was doing,
Angelini handcuffed him. Angelini observed lacerations to both of Jane Doe’s
shoulders, and a laceration to Alvarez’s head.
In response to Deputy Angelini’s call, multiple officers from the San
Bernardino Police Department responded to the scene, along with an
ambulance. According to one responding officer, Jane Doe was “distraught”
and “crying.” In the next 20 minutes or so, officers spoke separately with
Jane Doe and Alvarez. The conversations were recorded by the officers’ body-
worn camera.
Jane Doe was unavailable at trial. Videos of two conversations
between Jane Doe and the officers at the scene were admitted at trial. In
them, she appeared distressed, crying and saying her arms hurt multiple
times. In the first conversation, Jane Doe told officers the following in
response to their questions:2
“[Officer 1]: We’re gonna go check him out so what happened?
2 The excerpts in this opinion are based on transcripts of the recordings
that were provided to the jury. Although these transcripts are not
themselves evidence, both parties rely on them for purposes of appeal, and
neither object to their accuracy.
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“[Jane Doe]: He said give me something give me something. I
don’t want to right now, I don’t want to. And then
he just threw me down on the floor right there
(points) and started taking off my pants.
“[Officer 1]: Where did you, did you meet him right here?
“[Jane Doe]: Yeah I was hanging out in front of the Thrift
Store.
“[Officer 1]: Where?
“[Jane Doe]: The Thrift Store
“[Officer 1]: Okay.
“[Jane Doe]: Yeah I just met him there up front.
“[Officer 1]: Okay how’d you guys end up over there?
“[Jane Doe]: I took off so I could buy a pack of cigarettes and I
went home passed right through here and he was
still here so we just start talking and then it
happened and . . .
“[Officer 1]: Well I need you to go into detail. It’s very
important that you go into detail and tell me what
happened.
“[Jane Doe]: We just had, I didn’t wanna have sex now with
anybody right now. I didn’t even know him and he
kept throwing himself at me, throw himself at me
trying to ah, he said umm, I couldn’t remember
what he said but like I just said why you trying,
why-why you trying to do that cuz we were talking
about relationships and stuff. I guess his
girlfriend is-was girlfriend is like umm a fuck
girlfriend I don’t know. And then he put me down
he just humping me naked over here. Put his
hands on my neck and pulled my hair. Owww.
“[Officer 1]: How long, how long, how long was he having sex
with you?
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“[Jane Doe]: For like probably I don’t know like less, five like I
don’t know five minutes eight minutes or
something.
“[Officer 1]: Five minutes okay, did he ejaculate?
“[Jane Doe]: I don’t know because he said he was going to but
then if I remember if I felt it or nothing.
“[Officer 1]: Alright do you feel any semen inside of you?
“[Jane Doe]: No. Oh God.
“[Officer 1]: Do you want to go to the hospital today?
“[Jane Doe]: Umm it’s late I can take myself in the morning by
seven in the morning [inaudible]
“[Officer 2]: You don’t, you don’t wanna go right now?
“[Jane Doe]: I [inaudible] I’m just here for
“[Officer 2]: Okay if you [inaudible]
“[Jane Doe]: I’m playing with I’m playing with her and
umm . . .
“[Officer 1]: Playing with who?
“[Jane Doe]: Playing with her play fighting just play fighting
“[Officer 2]: Who’s-who’s her?
“[Jane Doe]: I don’t know like I said we just lyed [sic] here, lyed
[sic] here. I-I-I [inaudible] I just walked. She
climbed in there and beat the hell outta me
and . . .
“[Officer 2]: A lady climbed in the fire hydrant?
“[Jane Doe]: [Inaudible] and she [inaudible] I didn’t try to
[inaudible]
“[Officer 2]: So do you wanna go to the hospital or no?
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“[Jane Doe]: No.
“[Officer 2]: No?
“[Jane Doe]: I’m okay.
“[Officer 1]: [Inaudible] handle this?
“[Jane Doe]: I just need Band Aids.
“[Officer 1]: Okay we’ll get you some Band Aids okay? One
second okay?” (Italics added.)
In the second conversation, Jane Doe said the following in response to
an officer’s questions:
“[Officer]: So, who is this person to you?
“[Jane Doe]: Nobody. I never seen him before in my life.
“[Officer]: And so, what happened over here?
“[Jane Doe]: I don’t know. I was waiting to (unintelligible) . . .
right here. So, he was coming on to me,
(unintelligible) asking for a cigarette. Then, like
(unintelligible) . . . later, he stood up and he
started demanding . . . (unintelligible) . . .
“[Officer]: I’m sorry, what?
“[Jane Doe]: Demanding I do that (unintelligible) . . . to have
sex. And I said NO. No . . . he said do you want to
go someplace, he said he wanted to smoke, and then
. . . that happened.
“[Officer]: What happened?
“[Jane Doe]: He just started taking off my clothes. I said, no, no!
And . . . I was defiled.
“[Officer]: Are you okay?
“[Jane Doe]: Yeah, I’m okay. A little shaken up and cold.”
(Italics added.)
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A video of the officers’ conversations with Alvarez at the scene was also
admitted at trial. In it, Alvarez said he did not have sex with Jane Doe. He
claimed he “never touched her” and only approached her because she was
screaming and he had tried to calm her down. He said he was just walking
past on his way to his “cousin’s house down the street” when he had seen “a
white guy with a basket.”
Later that night, at the police station, Alvarez continued to deny
having sex with or raping Jane Doe. He changed his version of events
slightly, now claiming he had met Jane Doe at a bar and played pool with her
and that he was on his way to a “friend’s house.” Alvarez explained the
“white guy with a basket” had assaulted Jane Doe. A recording of his police
station statement was admitted at trial:
“[Alvarez]: . . . And what’s it called, umm, this female was
standing there on the side of the road screaming
like ass-my dead ass I’m talking [inaudible] if you
hear somebody dead ass screaming and they’re
screaming like, like they were dying, that’s how
she was screaming, like she was dying. Okay so I
walked up and some white fool . . . . I walked up I
seen some white guy with a basket, he was
running off okay? So when I walked up I told her,
I was like hey what’s wrong? As soon as I said
that as soon as I said that, that’s when all this
officer showed up. I put my hand on her shoulder,
that’s all I did, honestly. Look, I never touched
her in no type a-way. I only put my hand on her
shoulder and that[’]s when the officer tried to say
that I had my pants down.”
“[Alvarez]: And I seen her I seen him, he was grabbing her by
her hair and everything. That’s when I stepped
up, that’s what I told to them hey darling hey look
can you relax you need to go somewhere
[inaudible] and that’s when the other officer pulled
up when the white guy took off with his basket,
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then that’s when the officer told me that I’m trying
to touch this female. That’s when like, I told him
straight up it wasn’t me, I don’t even know this
girl. Then that’s when he hit me, putting
handcuffs and everything and he was [inaudible]
cooperative being uncooperative and everything
with him.”
Jane Doe and Alvarez were taken to separate hospitals for medical
treatment and sexual assault examinations. According to the nurse who
examined Jane Doe, there were fresh abrasions on both of her elbows and
knees. The nurse noted Jane Doe appeared “[u]nder the influence, agitated,
and sleepy.” Jane Doe told the nurse she had used drugs within the last 120
hours.
A criminalist tested evidence collected from both Jane Doe and Alvarez
for DNA. Female DNA in samples swabbed from Alvarez’s penis and scrotum
was “at least 49 quintillion times more likely” to belong to Jane Doe than
some other person. A swab of Jane Doe’s cervix contained male DNA, but the
amount obtained was insufficient to analyze.
Alvarez did not present any evidence in his case in chief. The jury
deliberated for less than two hours before returning a guilty verdict. Alvarez
was sentenced to three years in state prison.
DISCUSSION
Alvarez asserts Jane Doe’s recorded statements to the officers at the
scene were inadmissible hearsay and their admission at trial, without his
ability to cross-examine Jane Doe, violated his right of confrontation under
the Sixth Amendment. We agree there was a Sixth Amendment violation but
because we find the error harmless beyond a reasonable doubt, we affirm.
“In light of our hearsay rules and [Crawford v. Washington (2004) 541
U.S 36) (Crawford)], a court addressing the admissibility of out-of-court
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statements must engage in a two-step analysis. The first step is a traditional
hearsay inquiry: Is the statement one made out of court; is it offered to prove
the truth of the facts it asserts; and does it fall under a hearsay exception? If
a hearsay statement is being offered by the prosecution in a criminal case,
and the Crawford limitations of unavailability, as well as cross-examination
or forfeiture, are not satisfied, a second analytical step is required.
Admission of such a statement violates the right to confrontation if the
statement is testimonial hearsay, as the high court defines that term.”
(People v. Sanchez (2016) 63 Cal.4th 665, 680.)
In Crawford, the United States Supreme Court held that admission of
“testimonial” hearsay violates the Confrontation Clause of the Sixth
Amendment unless the declarant can be cross-examined at trial or the
declarant is unavailable to testify at trial and the defendant had a prior
opportunity for cross-examination. The Court later explained the difference
between “testimonial” and “nontestimonial” statements to government
officials:
“Statements are nontestimonial when made in the course of
police interrogation under circumstances objectively indicating
that the primary purpose of the interrogation is to enable police
assistance to meet an ongoing emergency. They are testimonial
when the circumstances objectively indicate that there is no such
ongoing emergency, and that the primary purpose of the
interrogation is to establish or prove past events potentially
relevant to later criminal prosecution.”
(Davis v. Washington (2006) 547 U.S. 813, 822.)
On appeal, we independently review whether admission of evidence
gave rise to a violation of the Sixth Amendment right of confrontation.
(People v. Johnson (2007) 150 Cal.App.4th 1467, 1477–1478.) We evaluate
the primary purpose for which a statement was taken under an objective
standard, “considering all the circumstances that might reasonably bear on
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the intent of the participants in the conversation.” (People v. Cage (2007) 40
Cal.4th 965, 984 (Cage).)
The People contend Jane Doe’s hearsay statements to law enforcement
at the scene were properly admitted under the “spontaneous statements,” or
excited utterance, exception. Under Evidence Code section 1240, a hearsay
statement is admissible if it: “(a) Purports to narrate, describe, or explain an
act, condition, or event perceived by the declarant; and (b) Was made
spontaneously while the declarant was under the stress of excitement caused
by such perception.” We shall assume without deciding the statements were
admissible under the exception. We conclude, however, the admission of the
statements violated Alvarez’s right to confrontation because the statements
were testimonial hearsay.
The People assert Jane Doe’s statements were not testimonial because
they “were made while police were responding to an ongoing emergency, and
the primary purpose of the police questioning was to assess the situation and
collect information regarding [Jane Doe’s] medical condition.” The record
does not support these contentions.
Deputy Angelini arrived on the scene at approximately 2:29 a.m. and
almost immediately apprehended and handcuffed Alvarez. By 2:39 a.m.,
three more police vehicles had responded to the scene, and by the time
officers questioned Jane Doe, paramedics had arrived as well. The suspect
had been apprehended, the scene was well secured, and both Jane Doe and
Alvarez had only minor injuries. There was no “ongoing emergency” at that
point.
The nature of the officers’ questioning reflects an intent to investigate a
completed crime and develop evidence. Jane Doe was asked “what happened”
and told to “go into detail.” The officers sought a timeline of the assault and
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information about the relationship between Alvarez and Jane Doe. Jane
Doe’s responses to those questions were relevant for investigative purposes
only. To the extent some of the officer’s questions could conceivably assist in
assessing Jane Doe’s medical condition, it was plainly not the primary
purpose. There was already a paramedic present who was responsible for
Jane Doe’s medical care. (See Cage, supra, 40 Cal.4th at pp. 984–985
[testimonial nature of statements was “manifest” when “emergency medical
personnel were already attending to” the victim at a hospital and an officer
asked him to “describe ‘what [had] happened between [the victim] and the
defendant’ ”].)
Thus Jane Doe’s hearsay statements were testimonial. Because
Alvarez had no opportunity to cross-examine Jane Doe, their admission
violated the Confrontation Clause.
We next examine for prejudice under Chapman v. California (1967) 386
U.S. 18, 24 (Chapman). (Delaware v. Van Arsdall (1986) 475 U.S. 673, 684
(Van Arsdall) [Confrontation Clause violations are subject to
federal harmless-error analysis].) The harmless error inquiry asks: “ ‘ “Is it
clear beyond a reasonable doubt that a rational jury would have found the
defendant guilty absent the error?” ’ ” (In re Lopez (2023) 14 Cal.5th 562,
581.) And “[w]hether [a Crawford] error is harmless in a particular case
depends upon a host of factors . . . includ[ing] the importance of the witness’
testimony in the prosecution’s case, whether the testimony was cumulative,
the presence or absence of evidence corroborating or contradicting the
testimony of the witness on material points, the extent of cross-examination
otherwise permitted, and, of course, the overall strength of the prosecution’s
case.” (Van Arsdall, at p. 684.)
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We conclude the error here was harmless under the Chapman
standard.3 As an initial matter, there was strong evidence that Alvarez had
sexual intercourse with Jane Doe. Deputy Angelini witnessed Alvarez in the
commission of the act, and there was unrebutted evidence that Jane Doe’s
DNA was present on Alvarez’s genitals. Although Alvarez denied touching
Jane Doe to police, on appeal, he does not dispute that intercourse occurred.
There was also overwhelming circumstantial and direct evidence,
independent of Jane Doe’s recorded statements, that the sex was not
consensual. The man on the bicycle directed Deputy Angelini to the area
where Alvarez and Jane Doe were later found to be engaged in sexual
intercourse because “he heard a female screaming for help.” When Deputy
Angelini drove toward the area, he also heard Jane Doe “screaming for help.”
And when Angelini got out of his patrol vehicle, Jane Doe spontaneously
yelled, “Help me. Help me. He’s raping me.”4 Jane Doe had also suffered
fresh scrapes on her elbows and knees. All this evidence supports a
3 Assuming Jane Doe’s statements were also inadmissible hearsay, our
analysis would be governed by People v. Watson (1956) 46 Cal.2d 818, 836,
under which we reverse only if it is reasonably probable that Alvarez would
have reached a more favorable result in the absence of the error. (See People
v. Clark (2021) 62 Cal.App.5th 939, 968 [state law evidentiary error governed
by Watson].) Having concluded that the error was harmless under the more-
rigorous Chapman standard, we would also conclude that the error was
harmless for purposes of Watson. Accordingly, we need not separately
address the parties’ hearsay arguments.
4 Alvarez contends this statement is not credible because Alvarez could
not have been actively penetrating Jane Doe when she yelled this. This is a
meritless argument. Given that Angelini testified that he observed them
having sex seconds earlier, the active tense is colloquially, if not literally,
accurate.
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conclusion beyond a reasonable doubt that Alvarez engaged in non-
consensual intercourse with Jane Doe.
Further still, in his interviews with police, Alvarez did not claim he had
consensual sex with Jane Doe. Rather, he claimed she was assaulted by a
white man with a basket and his contact with her was limited to briefly
consoling her after that assault. There was evidence, however, to refute his
claim beyond a reasonable doubt. The surveillance footage shows Jane Doe
and Alvarez were together for over five minutes before Jane Doe was
assaulted, and there was no person that appeared with a basket. As the jury
was instructed, Alvarez’s denial he had sexual intercourse with Jane Doe
supports the reasonable inference that Alvarez was conscious of his guilt.
(See CALCRIM No. 362 [defendant’s “false or misleading statement . . . may
show” awareness of guilt].)
On appeal, Alvarez focuses much of his argument on Jane Doe’s
asserted lack of credibility. He identifies two reasons she lacked credibility.
First, he claims Jane Doe was unable “to perceive and recall the events of
that evening” given her intoxication. But the jury received evidence
suggesting Jane Doe may have lacked capacity to perceive and recall the
events. The jury was presented with the surveillance footage that showed
Jane Doe’s odd behavior. The nurse who examined Jane Doe testified she
appeared “under the influence.” Even the improperly admitted footage
tended to show that Jane Doe was not wholly lucid, most strikingly in her
illogical statement about “play fighting” with a woman who climbed into a
fire hydrant. Despite having evidence of Jane Doe’s incoherence at the time
she made the challenged statements, the jury’s swift verdict suggests it did
not have trouble with Jane Doe’s credibility because she presented signs of
intoxication.
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Second, Alvarez contends that because Jane Doe’s “behavior of waving
at cars and at whatever men walked by is consistent with her being on the
street that night for the purpose of soliciting prostitution,” he was denied the
opportunity to cross-examine her on “whether she agreed to sex as part of a
business transaction.” This argument does not help Alvarez because Alvarez
denied in his police statements he had any sexual intercourse with Jane Doe.
In sum, we conclude the evidence of Alvarez’s guilt on rape was
overwhelming and the improperly admitted evidence was cumulative of other
properly admitted evidence. (See, e.g., People v. Jennings (2010) 50 Cal.4th
616, 652–653 [admission of statements bearing directly on intent was
harmless beyond a reasonable doubt in light of “overwhelming circumstantial
evidence” of defendant’s intent]; Cage, supra, 40 Cal.4th at p. 993 [admission
of “largely cumulative” statements harmless beyond a reasonable doubt
where they “were substantially consistent with” other admissible statements,
“and nothing in the additional details [the inadmissible statements]
contained was crucial to the charges”].) And here, the jury’s very brief
deliberations give no indication this was a close case in which the
introduction of cumulative evidence might not have been harmless. (See In
re Martin (1987) 44 Cal.3d 1, 51 [long deliberations may suggest a “very
close” case].) We thus conclude the erroneous admission of Jane Doe’s
hearsay statements was harmless beyond a reasonable doubt.
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DISPOSITION
The judgment is affirmed.
DO, J.
WE CONCUR:
McCONNELL, P. J.
BUCHANAN, J.
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