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November 30, 2010


APPEAL from a judgment of the Superior Court of Kings County. Steven D. Barnes, Judge. (Super. Ct. No. 08CM2983)

The opinion of the court was delivered by: Wiseman, Acting P.J.

P. v. Alvarez CA5


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.



Appellant Michael Steven Alvarez was convicted by jury trial of rape (Pen. Code,*fn1 § 261, subd. (a)(2), count one); making a criminal threat (§ 422, count two); and possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a), count three). In a bifurcated court trial, Alvarez was found to have suffered four prior prison terms within the meaning of section 667.5, subdivision (b). Alvarez was sentenced to the upper term of eight years on count one, plus consecutive terms of one-third the middle term of eight months each for counts two and three, for a total term of 13 years 4 months.


In September 2008, Alvarez was staying with his aunt, whose household, in addition to Alvarez, included the aunt's then 17-year-old daughter I.A., three other children, an adult daughter, and her children. The home had one bathroom that was situated between two of the three bedrooms. The aunt and her three children slept in one room, and the adult daughter and her children slept in another bedroom. The third bedroom was not being used for sleeping at the time. Alvarez slept in the living room. The bathroom was located between the aunt's bedroom and the unused bedroom.

Late on September 29, I.A. awoke and went to use the bathroom. While she was seated on the toilet, Alvarez entered the bathroom. She told him to leave, but he refused. She got up from the toilet and started to pull up her pants. Alvarez grabbed her and told her to spread her legs. As she struggled to get away, Alvarez pushed apart I.A.'s legs and forced his penis into her vagina. After Alvarez released her and left the bathroom, I.A. returned to bed, without waking her mother or sister. The next morning, September 30, I.A. showered and went to school, but did not feel good. She started to cry in her second class of the day and asked to leave to get some air, but otherwise made it through the rest of the school day. When she got home, she washed her clothes from the night before.

She saw Alvarez at dinner time. He told her that if she told anyone she would "see what would happen." I.A. started to cry and went to her bedroom. Her mother, the aunt, asked her what was wrong. Eventually, I.A. told her mother what had happened the night before but did not provide any details. The mother asked Alvarez what he had done. He at first said he had done nothing, but then began gathering his belongings and left the house. He told the mother, "I am so sorry aunt." The mother called her sister-in-law and I.A.'s father. Both came to the house. Each talked with I.A., who was crying and who had locked herself in the bedroom. The family ultimately called the police.

When the police interviewed I.A., she told them what Alvarez had done. The police obtained a phone number for Alvarez and called him. They asked him to come to the station. Alvarez refused and told the officer calling that he knew what this was all about and that it was "bullshit." Alvarez said he needed "to handle his business first" and "get high." When Alvarez was ultimately arrested, he had 3.43 grams of methamphetamine in his pocket.


I. CALCRIM No. 1190

Alvarez contends that the trial court erred in instructing the jury pursuant to both CALCRIM Nos. 1190 and 301,*fn2 although he acknowledges that the California Supreme Court in People v. Gammage (1992) 2 Cal.4th 693 (Gammage), approved the giving of earlier equivalents of both instructions. Alvarez argues that the decision in Gammage is no longer valid because its premise, i.e., that jurors must be informed that a rape victim's testimony need not be corroborated, is outdated. According to Alvarez, it has been 18 years since Gammage was decided and modern jurors can now be expected to know that the corroboration rule in rape cases has been discredited.

Alvarez's challenge must be rejected for three reasons. First, Alvarez failed to object to the instruction given. He actually stipulated that the instruction be given. It is well settled that a party may not complain on appeal about the giving of an instruction correct in the law and responsive to the evidence unless the party objected to the instruction and/or requested clarifying or amplifying language. (People v. Valdez (2004) 32 Cal.4th 73, 113.) It is undisputed, and Alvarez does not argue to the contrary, that CALCRIM Nos. 1190 and 301 are both correct statements of current law. (Gammage, supra, 2 Cal.4th at p. 700.)

Second, we are unwilling to adopt Alvarez's unsupported assertion that Gammage must be revisited because modern jurors can be expected to know that corroboration of a rape victim's testimony is not required. In our collective legal and judicial experience, many lay jurors continue to believe generally that a witness's testimony alone is not actual "proof," and independent corroboration, usually of a physical nature, is needed to "prove" guilt. We are unpersuaded that the concern of the court in Gammage that jurors might still believe a rape victim's testimony is not sufficient proof to convict has significantly changed over the 18 years since the decision was issued.

Finally, we disagree that the Gammage decision rests on this premise in any event. In Gammage, the defendants claimed that giving both the equivalent of CALCRIM No. 1190 and CALCRIM No. 301 improperly suggested that, while other witnesses' testimony should be viewed with caution (after carefully reviewing all the evidence), the testimony of the complaining witnesses need not be reviewed as carefully. After a careful analysis of the history of the instructions, the court concluded that giving both instructions did not deprive the defendant of a fair trial. The court acknowledged the need to protect the defendant's right to a fair trial while at the same time protecting the victim's right to testify against the assailant without unduly suffering from the inherent stigma of a criminal sexual offense. The court explained that the two instructions have different focuses, even though they overlap to some extent. What is now CALCRIM No. 301 instructs the jury how to evaluate a fact proved solely by the testimony of a single witness and is given in the context of other instructions on the jury's factfinding process. On the other hand, what is now CALCRIM No. 1190 "declares a substantive rule of law" that the testimony of a complaining witness in a sexual assault crime need not be corroborated. (Gammage, supra, 2 Cal.4th at p. 700.) It is given along with other instructions setting out the legal elements of the charged crimes. (Id. at pp. 700-701.)

Therefore, the court expressly rejected the very argument Alvarez makes here, that the giving of both instructions creates a preferential credibility standard for a complaining witness in a sexual assault case, not on the basis that jurors might still harbor an outdated belief about proof, but on a finding that the two instructions do not dilute the "beyond a reasonable doubt" standard or lead to an unfair trial. (Gammage, supra, 2 Cal.4th at p. 701.) The court unequivocally stated, "The instructions in combination are no less correct, and no less fair to both sides, than either is individually." (Ibid.) We agree with and are bound by the court's conclusions. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

II. Instruction on delayed reporting

Alvarez's second challenge on appeal is that the trial court erred in giving the following special instruction to the jury: "You have heard testimony that [I.A.] did not promptly complain about the offense alleged in Count [one]. Silence or delay in the reporting of the actions complained of in Count [one] is not inconsistent with the allegations complained of in Count [one], but may assist you in arriving at a more reliable determination as to whether the offense occurred. However, the timing of an alleged victim's complaint is only one factor to be considered, and should be viewed among all other evidence presented regarding the circumstances under which the complaint was made."

We reject Alvarez's challenge for a variety of reasons. First, Alvarez did not object to the instruction given. To the contrary, the record establishes that Alvarez specifically requested an instruction be given based on the late-reporting doctrine and that defense counsel provided the court with a proposed instruction which the court gave as modified. Although the record does not establish the nature of the modification (because the proposed instruction is not in the record), Alvarez stipulated to the instruction as modified. Any challenge to the instruction given on appeal is therefore forfeited because the instruction was requested by the defense, and there was an identifiable tactical reason for doing so (to emphasize for the jury that I.A. did not immediately report the offense although she had an opportunity to do so); there was no objection to the modification; and Alvarez has failed to provide an adequate record on appeal to establish the nature of the court's modification. (See People v. Harris (2008) 43 Cal.4th 1269, 1293; People v. Hardy (1992) 2 Cal.4th 86, 152; People v. Valdez, supra, 32 Cal.4th at p. 113.)

Further, even if we were to consider the merits of Alvarez's claim, we would reject it. The instruction was not argumentative as Alvarez claims. It did not tell the jury that I.A. was telling the truth about the rape or that the delay in reporting should be disregarded. The instruction given was neutral in content and simply instructed the jury that the delay itself was not inconsistent with a finding that the assault occurred, but that the delay in reporting was one factor to be considered in evaluating the credibility of the complaining witness. This is an accurate statement of the law and does not favor one side or the other. (People v. Wright (1988) 45 Cal.3d 1126, 1137 [pinpoint jury instruction should be neutral, not interfere with domain of jury, list only factors applicable to evidence, and refrain from being unnecessarily long or argumentative].)

Alvarez makes much of the fact that there was no rape trauma syndrome evidence presented in this case to explain why rape victims might delay reporting their assault. He argues that the pinpoint instruction is an attempt at providing expert testimony in the form of a jury instruction. Rape trauma syndrome evidence, however, is offered to assist the jury in evaluating the credibility of the complaining witness when there is a delay. Such evidence is allowed precisely because of the possible perception by jurors that if the assault occurred as alleged, the victim would immediately report it. The proponent of rape trauma syndrome evidence hopes that such expert evidence will dispel any misguided perceptions and provide the jury with psychological reasons why a victim might not immediately report. (See People v. Coffman and Marlow (2004) 34 Cal.4th 1, 82 [rape trauma syndrome evidence admissible to rehabilitate testimony of complaining witness where there has been suggestion that her behavior after assault, such as delay in reporting, was inconsistent with her claim of rape]; People v. Bledsoe (1984) 36 Cal.3d 236, 247-248 [rape trauma syndrome evidence may play useful role by disabusing jury of some widely held misconceptions about rape and rape victims, allowing it to evaluate evidence free of constraints of popular myths].)

The absence of such expert evidence does not, however, change the jury's duty, which is to consider the delay in evaluating the truth of the complaints made against the defendant. As we have stated, delay alone is not inconsistent with the assault, but just one factor to be considered in weighing the evidence. With or without rape trauma syndrome evidence, the jury must evaluate the circumstances of the delay and all the other evidence in determining the credibility of the complaining witness. Had rape trauma evidence been introduced, the jury would have had an expert explanation to consider along with the actual evidence of the delay and I.A.'s testimony. But, it would still have had to determine whether I.A. was credible and what if any impact the delay had on her credibility. The instruction given by the court in this case simply stated the law and directed the jury to its charge.

Since we have found no error, we need not address Alvarez's claim of cumulative prejudice.


The judgment is affirmed.

WE CONCUR: Kane, J. Detjen, J.

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