Filed 5/7/14 P. v. AlvarezAlvarez CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G047701

         v.                                                            (Super. Ct. No. 10HF0476)

MIGUEL ALVAREZALVAREZ,                                                 OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, John
Conley, Judge. Affirmed.
                   Joanna McKim, under appointment by the Court of Appeal, for Defendant
and Appellant.
                   Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Tami
Falkenstein Hennick, Deputy Attorneys General, for Plaintiff and Respondent.
                                          *                  *                  *
                Defendant Miguel AlvarezAlvarez was convicted of two counts of forcible
rape, as well as additional charges in an earlier trial that stemmed from the same incident,
an assault on his former girlfriend. Defendant argues two errors with respect to the
admissibility of evidence. First, he asserts the court should not have admitted expert
opinion testimony from a nurse who examined the victim after the assault, arguing this
was improper expert opinion. Second, he argues the court erred by not allowing him to
present evidence the victim applied for a U visa based on the assault, claiming its
probative value outweighed the potential for prejudice. We conclude that both decisions
regarding the admissibility of evidence were within the court’s permissible discretion,
and therefore affirm.
                                                 I
                                             FACTS
                In an amended information, the Orange County District Attorney charged
that on March 17, 2010, defendant committed two acts of forcible rape (Pen. Code, § 261,
subd. (a)(2)1 (counts one and two)), willful infliction of corporal injury on a coparent (§
273.5, subd. (a), count three), and criminal threats (§ 422, count four), all against Teresa
A. The information also alleged additional allegations and a number of enhancements,
including the use of a cord and a knife as weapons in connection with counts one and
two, the personal use of a deadly weapon on those counts, and the personal use of a
deadly weapon (the cord) on count three. (§§ 667.61, subds. (b), (e)(4), 1192.7, 12022,
12022, subd. (b)(1), 12022.3, 12202.3, subd. (a).)
                At the first trial in this matter, at which the victim, Teresa, could fairly be
termed a reluctant witness, Teresa testified that she and defendant had dated for almost
six years. They had lived together with their young daughter until early in March 2010,
when Teresa ended the relationship and defendant moved out of the apartment.


1   Subsequent statutory references are to the Penal Code unless otherwise indicated.

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              On March 17, 2010, when Teresa woke up in the morning, with her
daughter sleeping next to her, defendant was in her apartment. Defendant put a cable
around her neck while Teresa was on her back, and defendant was on his hands and knees
over her. The cable was tight around Teresa’s neck. Defendant accused her of cheating
on him and rejecting him, and demanded a photo of her taken the previous weekend. He
told her that he loved her and wanted another chance. Around this time, he had taken the
cable off Teresa’s neck. Teresa testified that after some discussion, she hugged him and
then they had intercourse, stopping when the child woke up.
              Teresa tended to the child and then defendant and Teresa resumed having
intercourse. Defendant left shortly thereafter. Teresa had already decided that she did
not want to reunite with him.
              Teresa’s friend Alma came over, and after Teresa told her what had
happened, Alma called 911. Teresa told the 911 operator that defendant had come over
with a knife, choked her with a cable, and threatened that he would come back to kill her.
She was crying during the phone call.
              Officer Jose Torres of the Costa Mesa Police Department responded to the
call. Teresa testified she did not remember most of what she told Torres, and denied
some of her statements to him entirely. Torres testified about Teresa’s statements and
demeanor at some length. In addition to the notes he took, he was also wearing a digital
audio recorder at the time, and he reviewed the recording and transcript prior to trial.
When he arrived, Teresa was crying and looked scared. Teresa told Torres that defendant
had wrapped a cord around her neck, tightened it, and threatened her with a knife, and
she was afraid defendant was going to kill her and the baby. Teresa also said that
defendant had hit her before, approximately six times, and that he had threatened to take
the baby away to Mexico. With respect to the intercourse, Teresa told Torres that
defendant had forced himself on her, with the cord around her neck. After she got the
baby some milk to quiet her, defendant forced her to have intercourse again, this time at

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knifepoint. Teresa told Torres that defendant had said that if she did not want to have
problems, she would cooperate.2
              On the afternoon of the incident, Toyetta Beukes, a member of the Sexual
Assault Response Team (SART) performed an exam on Teresa. Teresa consented to the
exam. Teresa told Beukes that she had been sexually assaulted twice, once with a cord
around her neck and the other time at knifepoint. Teresa was cooperative, but tearful at
times. With respect to the cord, Teresa said defendant had choked her on and off,
loosening and tightening the cord, for about five minutes. Teresa’s eyes were red, and
Beukes testified the redness was the result of either the strangulation and/or the crying.
Teresa did not have any genital injuries. Beukes testified that in approximately 80 to 90
percent of the exams she had performed in cases involving domestic violence, the
victim’s genital exam was normal.
              At trial, a doctor testified for the defense that he had reviewed the SART
and investigator report, and did not see any sign of forced penetration or completed
strangulation. He testified the redness in her eyes was not “related necessarily to
strangulation.”
              Defendant was interviewed by the police on the day of the incident, and the
tape of the interview was played at trial. Defendant said he went to Teresa’s house that
day to talk to her. He was angry because she wanted her freedom and he wanted another
chance to be with her. He went into the bedroom and she woke up. He admitted
threatening to take the child away to Mexico. He said he had a cable he brought into the
house and he “did lose control and . . . wanted to choke her.” Defendant said they had
sex and she said she still loved him. The baby was next to them, asleep on the bed. He
admitted picking up a knife that was already there, but did not threaten her with it. He


2 Apparently, Teresa’s story began to change after visiting defendant in jail in October
2010. She told the district attorney and an investigator that she was giving them new
information because she felt bad that he was in jail.

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later said he used the knife to scare Teresa. He said they then had sex again. When
asked why Teresa would have sex with him when she had said she does not love him
anymore, defendant said he thought he had forced her.
               After the close of the first trial, the jury found defendant guilty of counts
three and four and the related enhancement. The jury did not reach a verdict on counts
one and two.
               At the second trial, the testimony was largely consistent with the first trial,
with the exception of Teresa’s. In brief, she testified in a manner far more consistent
with the testimony of others in the first trial and with what she had told the police on the
date of the incident. In sum, defendant was angry when he came to her apartment,
threatened her, and she was scared and felt that not resisting him was the only way to
calm him down. He had sex with her twice, with the cable around her neck the first time
and using the knife to threaten her the second time. When she went to the kitchen to get
milk for her daughter, she sent a text to her friend Alma, asking her to call the police.
               Teresa also testified that after she visited defendant in jail, she went to the
district attorney’s office and changed her statement so that he would be released. She
also testified at a court hearing that the sex was consensual in order to get him released.
               Following retrial, the jury found defendant guilty of counts one and two,
and returned true findings on the relevant enhancements. Defendant was sentenced to 30
years to life. He now appeals.
                                               II
                                        DISCUSSION
Standard of Review
               A trial court’s ruling on the admissibility of evidence is generally reviewed
for abuse of discretion. (People v. Williams (1997) 16 Cal.4th 153, 196-197 [“[i]n
determining the admissibility of evidence, the trial court has broad discretion. . . . On
appeal, a trial court’s decision to admit or not admit evidence, whether made in limine or

                                               5
following a hearing pursuant to Evidence Code section 402, is reviewed only for abuse of
discretion.”].) Such rulings “will not be disturbed except on a showing the trial court
exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted
in a manifest miscarriage of justice [citation].” (People v. Rodriguez (1999) 20 Cal.4th 1,
9-10.)


Beukes’s Testimony
              Defendant argues the trial court improperly permitted Beukes’s testimony
on the issues of why Teresa’s eyes were red on the exam and the frequency of normal
genital exams on domestic violence rape victims. He argues that “she was a nurse, with
no special expertise in strangulation or identifying domestic violence victims.”
              “A person is qualified to testify as an expert if he has special knowledge,
skill, experience, training, or education sufficient to qualify him as an expert on the
subject to which his testimony relates.” (Evid. Code, § 720.) Expert opinion testimony is
admissible when the subject matter is “beyond common experience,” and the expert’s
opinion would assist the jury. (Evid. Code, § 801, subd. (a).) The question of whether a
witness is sufficiently qualified as an expert is within the court’s discretion, and the
court’s exercise of that discretion will not be disturbed absent manifest abuse. (People v.
Jones (2013) 57 Cal.4th 899, 949.)
              Here, Beukes testified she has been a registered nurse since 1994, working
in a variety of settings. She had both bachelor and master’s degrees as a women’s health
nurse practitioner. At the time of trial, she was the director of the SART team at the San
Gabriel Valley Medical Center, and had been for over two years. She had trained more
than 40 physicians, nurse practitioners, and registered nurses in performing sexual assault
exams, and had performed more than 3,000 exams herself. About 10 to 20 percent of the
cases in which she conducted exams involved alleged domestic violence, and at least 50



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had involved strangulation. In addition, she performed peer review on the charts of other
practitioners, which helped to ensure consistency in findings and documentation.
              Defendant attempts to analogize this case to People v. Fierro (1991) 1
Cal.4th 173, 223-224 (Fierro) disapproved on other grounds in People v. Letner and
Tobin (2010) 50 Cal.4th 99, 205-206.) In Fierro, the defense attempted to qualify a
private investigator as “a crime scene reconstruction and ballistics expert.” (Fierro,
supra, 1 Cal.4th at p. 223.) He proposed to testify that based on his observations, he
believed the victim was standing in a certain position when shots were fired. The
investigator “acknowledged that he had no training in pathology and had never attended
an autopsy. [The investigator’s] experience in accident reconstruction was based on his
military service 20 years earlier, when he took photographs of plane and car crashes. He
had never photographed a crime scene involving a gunshot death. His opinion regarding
the effect of the bullets on the victim's body was based on his viewing of documentary
films of men in combat. His purported ballistics expertise was based on his own reading
and experience with guns; he had no formal training in ballistics . . . .” (Id. at p. 224.)
Thus, the court concluded, the trial court had not erred in concluding that the investigator
“had not demonstrated an expertise in either crime reconstruction or ballistics, and
limited his testimony to his observations of the crime scene.” (Ibid.)
              Similarly, in People v. Hogan (1982) 31 Cal.3d 815 (disapproved on other
grounds in People v. Cooper (1991) 53 Cal.3d 771), the court found that a criminalist
who had no qualifications to testify about blood spatter could not testify on that topic.
(People v. Hogan, supra, 31 Cal.3d at p. 852.) “He had admittedly received no formal
education or training to make such determinations. His background on the subject
consisted of viewing some years prior an exhibit, which had since been discarded,
prepared by some unknown criminalist which demonstrated patterns of human blood
dropped from various heights and angles. [The criminalist] had also read some years
prior a book about flight patterns of blood. Also, he had observed bloodstains at many

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crime scenes, and had determined in his own mind whether they were spatters or ‘wipes,’
but had never verified his conclusions in any way.” (Ibid., fn. omitted.)
              Unfortunately for defendant, these cases have little applicability here.
Beukes, unlike the “experts” in either Fierro or Hogan, had significant relevant
experience and training in evaluating the injuries suffered by sexual assault victims. Her
education was directly applicable to the relevant issues, and she had extensive practical
experience. She had conducted hundreds of exams involving alleged domestic violence,
and at least 50 involving strangulation. Based on this information, the trial court did not
err by admitting Beukes’s testimony as an expert. She was more than qualified to opine
about why Teresa’s eyes might have been red, and whether a normal genital exam had
any particular significance. Any question about Beukes’s specific knowledge as to these
two opinions was relevant to the weight of the evidence, not its admissibility. (People v.
Jones, supra, 57 Cal.4th at pp., 949-950.)
              While a harmless error analysis is unnecessary here, it is worth noting that
this evidence was particularly benign in the context of the case. Given the totality of the
facts here, the issue of whether she had a normal genital exam was not particularly
important. With respect to the reason Teresa’s eyes were red, again, this was simply not
a key issue in this case, and even if Beukes had not opined on either subject, it was not
reasonably probable that defendant would have obtained a more favorable result. (People
v. Watson (1956) 46 Cal.2d 818.)


U Visa
              At the beginning of trial, the prosecution objected to proposed defense
evidence that Teresa had applied for U visa. Under federal immigration regulations (8
C.F.R. § 214.14 (2012)), an undocumented immigrant who is the victim of certain crimes
can apply for a “U visa” providing temporary relief from deportation, and acquire
temporary nonimmigrant legal status if local law enforcement authorities certify that the

                                             8
alien would be of assistance in an investigation or prosecution.3 The prosecution argued
there was no evidence Teresa knew anything about the U visa prior to calling 911, and
therefore, presumably, it provided no motive for calling the police on the day of the
incident. The defense argued that Teresa’s recital of the facts had been inconsistent
throughout the life of the case, and therefore an additional motive to lie went to the heart
of the defense.
               When questioned, Teresa stated she originally found out about the visa on
the day of the incident in the waiting room for the sexual assault exam. Later, she spoke
with a volunteer at the Public Law Center. She wanted to know if she qualified for a U
visa as a victim of domestic violence. She understood that if she qualified, she could
remain in the country legally for a period of time. She apparently signed an application
but decided not to go forward.
               After Teresa’s testimony, defense counsel argued that she must have
withdrawn the application because she made a false statement in it. The prosecution
argued such a claim was without foundation. The trial court felt that Evidence Code
section 352 was applicable. If the jury heard such evidence, they would believe that
Teresa was undocumented, and might well believe the same about defendant. The court
believed the visa had little significance, but was potentially highly prejudicial, and
therefore declined to admit testimony about it.
               While defendant attempts to raise this issue to a constitutional level,
arguing the exclusion of the visa evidence was unconstitutional, we disagree. (People v.
Boyette (2002) 29 Cal.4th 381, 428 [“‘excluding defense evidence on a minor or
subsidiary point does not impair an accused’s due process right to present a defense.’”].)
Evidence Code section 352 gives the trial court discretion to exclude evidence “if its
probative value is substantially outweighed by the probability that its admission will (a)


3   See http://www.usimmigrationsupport.org/visa-u.html [as of April 30, 2014].

                                              9
necessitate undue consumption of time or (b) create substantial danger of undue
prejudice, of confusing the issues, or of misleading the jury.”
              Although “‘[c]ross-examination to test the credibility of a prosecuting
witness in a criminal case should be given wide latitude’ [citation], such latitude does not
‘prevent the trial court from imposing reasonable limits on defense counsel’s inquiry
based on concerns about harassment, confusion of the issues, or relevance’ [citations].”
(People v. Brown (2003) 31 Cal.4th 518, 545.) That is all that happened here. The visa
was a tangential, collateral issue, and allowing evidence about it invited speculation about
the legal status of both Teresa and, potentially, defendant, which was completely
irrelevant to this case. The trial court was well within its discretion in excluding
reference to the visa.
              Further, even if this was error, it was entirely harmless. Defendant focuses
on the importance of impeaching Teresa’s credibility, but there was already ample
evidence of Teresa’s changing stories throughout the life of this case that provided more
than enough to impeach her credibility. To the extent defendant argues it provided a
motive for Teresa to lie that she was ever raped, the uncontroverted evidence was that she
did not learn about the visa until after the incident, when she was waiting for a sexual
assault exam. Then, even though she had learned about the existence of the visa, she
changed her story in an attempt to eliminate defendant’s culpability, and testified only as
a very reluctant witness at the first trial. Thus, any claim that she had fabricated the
sexual assault in order to apply for the visa was contradicted by the facts on the ground,
particularly given that she did not follow through and file the application. Such a version
of the facts simply makes no sense, given the timing of various events.
              Given the overwhelming evidence, including the police testimony, the
physical exam, and defendant’s statements to the police, there is no reasonable argument




                                             10
that learning Teresa had applied and withdrawn an application for a U visa would have
changed the mind of any reasonable juror.4 Thus, there was no error.
                                          III
                                    DISPOSITION
             The judgment is affirmed.




                                                MOORE, ACTING P. J.

WE CONCUR:



FYBEL, J.



IKOLA, J.




4We find no prejudice under either relevant standard. (Cf. People v. Watson, supra, 46
Cal.2d 818, and Chapman v. California (1967) 386 U.S. 18.)

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