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THE PEOPLE v. MICHAEL STEVEN ALVAREZ

November 30, 2010

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
MICHAEL STEVEN ALVAREZ, DEFENDANT AND APPELLANT.



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

NOT TO BE PUBLISHED IN THE OFFICAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

OPINION

PROCEDURAL HISTORY

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.

FACTUAL SUMMARY

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.

DISCUSSION

I. CALCRIM No. ...


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