People v. Alvarez CA4/1

Filed 11/13/26 P. v. Alvarez CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115. COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA THE PEOPLE, D085816 Plaintiff and Respondent, (Super. Ct. No. SCD288940) v. JESSE MILTON ALVAREZ, Defendant and Appellant. APPEAL from a judgment of the Superior Court of San Diego County, Daniel B. Goldstein, Judge. Affirmed. Peter C. Blair for Defendant and Appellant. Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney General, Arlene A. Sevidal, Assistant Attorney General, and Christine Y. Friedman and Joshua Trinh, Deputy Attorneys General, for Plaintiff and Respondent.  I. INTRODUCTION A jury convicted Jesse Milton Alvarez of first degree murder, finding true the special circumstance that he committed the killing while lying in wait. On appeal, Alvarez claims the trial court improperly restricted expert testimony regarding his autism spectrum disorder (ASD) and obsessive compulsive disorder (OCD). Alvarez also asserts prosecutorial error.1 Based on the overwhelming evidence of Alvarez’s guilt, we find these errors harmless, even when considered cumulatively. Finally, we reject Alvarez’s claim that his mandatory sentence of life without the possibility of parole (LWOP) is unconstitutionally cruel and unusual. II. BACKGROUND A. Factual Background Alvarez and A.G. dated for approximately three and a half years until A.G. terminated their relationship in September 2019. Although A.G. repeatedly told Alvarez to stay away from her, Alvarez continuously attempted to contact A.G. Alvarez’s efforts included sending mail to A.G.; contacting A.G. and her friends through social media; following A.G. home; attempting to enter A.G.’s home while she was not there; calling A.G. at her place of work, Cathedral Catholic High School (Cathedral); and attending events at Cathedral, contacting student organizations, and obtaining a job at the school. In response, A.G. changed her schedule, moved several times, blocked Alvarez’s 1 Alvarez uses the term “prosecutorial misconduct,” but that “ ‘is somewhat of a misnomer to the extent that it suggests a prosecutor must act with a culpable state of mind. A more apt description of the transgression is prosecutorial error.’ ” (People v. Daveggio and Michaud (2018) 4 Cal.5th 790, 853.) 2 phone number, and unsuccessfully attempted to get a restraining order against Alvarez. On December 21, 2020, Cathedral announced on social media A.G.’s engagement to a fellow teacher, Mario Fierro. Alvarez learned of the engagement from that post, and within five hours from when it was made, Alvarez conducted numerous internet searches involving Fierro and Cathedral. Alvarez continued his internet research between December 22, 2020, and February 1, 2021, conducting voluminous searches for Fierro, A.G., and A.G.’s family. Alvarez’s searches and the websites he visited included: “hire a hit man,” “Sicarios [Spanish for hitman] San Diego,” “Tim Labesis” (the singer arrested for hiring someone to kill his wife), “how to shoot someone at their home address,” “in California, if you shoot someone, can they trace it back to you,” “how busy [are the] San Diego Police,” “California self-defense law,” “when is the use of force legal,” “will a shot to the head with a 9- millimeter Glock kill you,” “where to shoot at head to kill,” “fastest ways to kill with a 9-millimeter handgun,” “fastest ways to kill someone with a handgun,” “how to kill,” “fatal shots,” “best ways to kill,” “best places to shoot someone,” “are police stretched,” “police stretched thin during COVID,” “if you shoot someone and walk away, what happens?” “if you shoot someone and then leave, can police trace the death back to you?” “how to get away with murder,” “how to get away with shooting someone,” “how to kill your ex’s fiancé,” “shooter kills someone broad daylight not caught,” “what method does a hit man use to shoot,” “if someone hired a hit man to kill someone, who goes to prison?” “what methods does a hit man use to shoot someone,” “how to shoot someone without leaving forensic evidence,” “how to kill someone without leaving forensic evidence,” “how to commit the perfect murder,” “16 3 steps to kill someone and not get caught,” “leaving an invisible trail,” “how killers cover up their crimes,” “what do women do with an engagement ring if a man dies,” “why do criminals use prepaid phones,” “what are burner phones?” “do police use cell phone GPS data when investigating criminal activity?” “how do police use cell phone data in criminal investigations?” “common myths about cell phone tracking,” and “does a phone on airplane mode track geolocation?” Around the time of the murder, Alvarez owned a white nine-millimeter Glock handgun. On December 27, 2020, Alvarez enrolled in three handgun training classes. He took the first two classes on January 18, 2021, and the third on January 22, 2021. During one of those classes, Alvarez asked the instructor “where is the best place to shoot someone to kill them[?]” When the instructor responded that the purpose of the training was to stop a threat, Alvarez asked “well, what about the back of the head[?]” Alvarez also practiced shooting at gun ranges on January 18 and 21, 2021. Alvarez found Fierro’s address on the internet. On January 19, 2021, Alvarez went to Fierro’s apartment building, took pictures of the cars parked outside, and then researched the license plate numbers to determine which car Fierro owned. Alvarez mapped directions from his house to Fierro’s residence, from Cathedral to Fierro’s residence, and from Fierro’s residence to A.G.’s home. Alvarez researched Cathedral’s school calendar and learned that February 1, 2021, was the first day of in-person classes after the COVID-19 pandemic. On the evening of January 31, 2021, Alvarez watched instructional internet videos about shooting a gun without anticipating or flinching. 4  The next morning, at about 6:10 a.m. in the morning, Alvarez drove to Fierro’s apartment. He used his brother’s car instead of his own, and despite being a habitual cellphone user, Alvarez left his phone at home that morning. Alvarez dressed in all black and brought his loaded handgun with him. Alvarez parked about 30 feet away from Fierro’s car and waited approximately 40 minutes. Fierro exited his apartment, and when Fierro was loading items into the trunk of his vehicle, Alvarez approached Fierro from behind, shooting him six times. Alvarez’s shots struck Fierro in the back, the arm, twice in the forehead, and twice in the back of the head. Fierro died at the scene. An investigating detective interpreting the evidence opined that Alvarez first shot Fierro in the back as he was hunched over his trunk, and that Fierro was lying on the ground when Alvarez shot him in the back of the head. A witness driving by the shooting saw two men fighting. He described one man that looked angry and more aggressive who was holding a white object to a second man’s head. The second man looked scared and appeared to be defending himself and trying to get away. The witness heard gunshots, came back to find the second man lying on the ground, and called the police. Alvarez drove home after the shooting. He promptly searched the internet for “how to delete Google search history,” and “how to delete Microsoft Edge search history.” Police officers arrested Alvarez that same day. He had no injuries accept a minor abrasion. When interviewed, Alvarez denied dating A.G. and feigned ignorance of her last name. He also initially denied any knowledge of Fierro or that he shot Fierro. As the interview progressed, Alvarez admitted he went to Fierro’s house that morning, asserting he wanted to confront Fierro about taking advantage of A.G. while she was under the influence of 5 drugs and alcohol. Alvarez then asserted that Fierro aggressively attacked him first, and Alvarez retaliated by firing aimlessly as Fierro continued to lunge at him. B. Relevant Trial Proceedings The San Diego District Attorney’s Office charged Alvarez with murder (Pen. Code,2 § 187, subd. (a)), alleging that he intentionally killed Fierro “by means of lying in wait” (§ 190.2, subd. (a)(15)), and that he intentionally discharged a firearm causing great bodily injury and death (§ 12022.53, subd. (d)). Prior to his trial, Alvarez moved to admit expert testimony from psychologist Kristina Malek, who diagnosed Alvarez with ASD and OCD. Defense counsel asserted that the purpose of Dr. Malek’s testimony was to support Alvarez’s imperfect self-defense claim; specifically, Alvarez’s assertions that he went to Fierro’s apartment to talk, and that Alvarez honestly but unreasonably believed that Fierro attacked Alvarez. Defense counsel also stated the expert’s testimony would be used to explain Alvarez’s behavior regarding A.G. The trial court granted the motion, finding Dr. Malek’s testimony is “here to negate malice forethought,” but “[i]t doesn’t go to” Alvarez’s honest and unreasonable belief “at all.” The trial court also stated that Dr. Malek “can’t comment on … [Alvarez’s] bad perception of what happened that day.” When Dr. Malek testified at trial, she explained that she evaluated Alvarez and diagnosed him with ASD and OCD. Defense counsel elicited testimony from Dr. Malek that high functioning autistic individuals with 2 All further undesignated statutory references are to the Penal Code. 6 OCD struggle with social interaction, have difficulty understanding others’ perspectives and emotions, and have trouble with transitions and change. Regarding Alvarez specifically, Dr. Malek opined that he had difficulty with romantic relationships and understanding social cues, he needed people to be very direct, and he tended to continuously try to fix things. Nonetheless, Dr. Malek found Alvarez to be intelligent and high functioning. Dr. Malek also testified that ASD and OCD did not prevent employment or goal-oriented behavior. Alvarez testified in his own defense. He did not deny his extensive research, asserting that he was merely fantasizing. Alvarez also attributed his research, as well as his behavior with A.G. and his calm demeanor while he lied during the police interview, to his ASD and OCD. Alvarez admitted killing Fierro, claiming he acted in self-defense. Alvarez asserted he went to Fierro’s apartment to clear up his concerns about A.G.’s alcohol and drug use and to wish Fierro and A.G. well on their engagement. Alvarez told the jury that he introduced himself to Fierro, Fierro immediately attacked Alvarez, Alvarez pulled out his gun, Fierro got his fingers around the trigger and fired the gun, Alvarez regained possession of the gun, and Alvarez shot Fierro as Fierro continued advancing toward Alvarez. The trial court instructed the jury on several theories of homicide, including willful, deliberate, and premediated first degree murder, and voluntary manslaughter based on imperfect self-defense. In closing argument, defense counsel relied on imperfect self-defense, asserting that Alvarez merely went to Fierro’s apartment to talk to Fierro, and that Fierro was the aggressor. 7  The jury found Alvarez guilty of first degree murder. It also found true the firearm enhancement and the lying-in-wait special circumstance. At sentencing, Alvarez asked the trial court to strike the lying-in-wait special circumstance finding. He argued that the resulting mandatory LWOP sentence would be unconstitutionally cruel and unusual based on his ASD.3 The trial court denied the motion pursuant to section 1385.1, stating that it would deny the request even if that statute did not bar it from doing so.4 The trial court sentenced Alvarez to LWOP on the murder charge, plus 25 years to life for the gun use allegation. Alvarez’s timely appeal followed. III. DISCUSSION A. Any Error in Limiting Dr. Malek’s Testimony Was Forfeited and Harmless Alvarez argues that the trial court improperly prohibited Dr. Malek from testifying about how Alvarez’s ASD and OCD affected his perception of events and reactions to Fierro at the time of the shooting. Alvarez claims the trial court imposed a categorical restriction barring Dr. Malek from explaining how Alvarez’s condition “affected his: (1) perception of social cues, conflict, or escalating danger; (2) interpretation of Mr. Fierro’s conduct; and (3) stress response, fear processing, or communication difficulties.” To support his argument, Alvarez cites the trial court’s remark that Dr. Malek’s testimony “doesn’t go to” whether Alvarez honestly but 3 When a jury finds a lying-in-wait special circumstance true, the punishment is death or LWOP. (§ 190.2, subd. (a)(15).) 4 Section 1385.1 states in relevant part “[n]otwithstanding Section 1385 or any other provision of law, a judge shall not strike or dismiss any special circumstance which is admitted by a plea of guilty or nolo contendere or is found by a jury.” 8 unreasonably believed that Fierro posed an imminent threat. Alvarez further relies on the trial court’s statement that Dr. Malek could not comment on Alvarez’s “bad perception of what happened that day.” Alvarez claims the trial court’s errors were prejudicial because additional testimony from Dr. Malek would have supported his claim of imperfect self-defense by allowing the jury to understand how he misperceived Fierro’s conduct. We find this argument forfeited and any error harmless. 1. Standard of Review “In general, we review the trial court’s exclusion of evidence for abuse of discretion.” (People v. Herrera (2016) 247 Cal.App.4th 467, 475 (Herrera).) However, “[t]o the extent the trial court bases its evidentiary ruling on a conclusion of law, such as its conclusion here that [statutes] prohibit[ ] anything related to mental state at the time of the killing, we review its conclusion de novo.” (Ibid.) 2. Section 28 and 29 “Sections 28 and 29 limit the type of testimony experts may provide in criminal cases. Section 28 prohibits ‘[e]vidence of mental disease, mental defect, or mental disorder … to show or negate the capacity to form any mental state, including, but not limited to, purpose, intent, knowledge, premeditation, deliberation, or malice aforethought, with which the accused committed the act.’ … Such evidence ‘is admissible solely on the issue of whether or not the accused actually formed a required specific intent, premeditated, deliberated, or harbored malice aforethought, when a specific intent crime is charged.’ … Section 29 prohibits ‘any expert testifying about a defendant’s mental illness, mental disorder, or mental defect’ from discussing ‘whether the defendant had or did not have the required mental 9 states … for the crimes charged.’ That question is reserved for the trier of fact.” (Herrera, supra, 247 Cal.App.4th at pp. 475–476.) 3. Analysis We disagree that the trial court categorically restricted Dr. Malek’s testimony as Alvarez suggests. Indeed, the trial court allowed Alvarez to elicit testimony from Dr. Malek regarding how his ASD and OCD caused social cue deficits and inhibited his ability to understand others’ perspectives and emotions. The trial court also authorized Dr. Malek to explain how an “autistic person would act in certain situations,” as long as she “stay[ed] away from specific intent [and] malice aforethought.” This was “really all [defense counsel] wanted out of Dr. Malek,” and is consistent with the limitations imposed by sections 28 and 29 (Herrera, supra, 247 Cal.App.4th at pp. 475–476). Further, in his motion in limine and at the hearing on that motion, Alvarez stated he had no intention of eliciting testimony from Dr. Malek regarding the day of the shooting. Instead, Alvarez merely sought testimony about how his mental conditions affected him generally. Under these circumstances, Alvarez appears to have obtained the ruling he wanted, forfeiting any claim that the trial court’s order should have been broader. (People v. Pearson (2013) 56 Cal.4th 393, 470, fn. 10 [the “failure to raise [a particular] theory of admissibility at trial forfeit[s] the claim on review”]; People v. Fruits (2016) 247 Cal.App.4th 188, 208 [“a party cannot argue on appeal that the trial court erred in failing to conduct an analysis it was not asked to conduct”].) Indeed, the trial court’s minute order states that Alvarez’s motion was granted. 10  Nonetheless, even if the trial court erred by making the statements cited by Alvarez,5 we find that error harmless. “Because the trial court merely rejected some evidence concerning a defense, and did not preclude [Alvarez] from presenting a defense, any error is one of state law and is properly reviewed under People v. Watson [(1956) 46 Cal.2d 818].” (People v. McNeal (2009) 46 Cal.4th 1183, 1203.) Under that test, “ ‘we deem an error harmless unless it is “reasonably probable” the outcome would have been different in the absence of the error.’ ” (People v. Schuller (2023) 15 Cal.5th 237, 251 (Schuller).) Alvarez’s imperfect self-defense claim was based on his testimony that he went to Fierro’s apartment intending only to discuss his concerns regarding A.G.’s alcohol and drug use and Fierro attacked him. Thus, the premise of that claim was that Fierro was the initial aggressor. But by finding the lying-in-wait special circumstance true, the jury must have believed the evidence showing that this was a preplanned surprise 5 See, e.g., People v. Elmore (2014) 59 Cal.4th 121, 146 (“All relevant evidence of mental states short of insanity is admissible at the guilt phase under section 28[, subdivision] (a), including evidence bearing on unreasonable self-defense.”); People v. Cortes (2011) 192 Cal.App.4th 873, 908 (“sections 28 and 29 do not prevent the defendant from presenting expert testimony about any psychiatric or psychological diagnosis or mental condition he may have, or how that diagnosis or condition affected him at the time of the offense, as long as the expert does not cross the line and state an opinion that the defendant did or did not have the intent, or malice aforethought, or any other legal mental state required for conviction of the specific intent crime with which he is charged”). 11 attack.6 That finding cannot be reconciled with a finding that Fierro attacked first. (See, People v. Cruz (2008) 44 Cal.4th 636, 665 [lying-in-wait special circumstance negates imperfect self-defense theory of manslaughter].) Because the jury rejected Alvarez’s version of the incident where Fierro was the initial aggressor, any testimony from Dr. Malek regarding how Alvarez might have perceived Fierro’s alleged initial aggression would not have made a difference. Accordingly, it is not reasonably probable that Alvarez would have obtained a more favorable result, precluding reversal of the judgment. B. Any Prosecutorial Error Was Harmless Alvarez argues that the prosecutor repeatedly referred to Fierro’s killing as “murder” when questioning witnesses, amounting to prosecutorial error. Again, any error on this ground was harmless. 1. Additional Background While questioning witnesses, the prosecutor referred to Fierro’s killing as a “murder” 11 times. On the eleventh occasion, defense counsel objected, the trial found it to be argumentative, and the prosecutor thereafter referred to the incident as a shooting or killing. Alvarez cites a subsequent unobjected 6 “The ‘ “lying-in-wait special circumstance requires ‘ “ ‘an intentional murder, committed under circumstances which include (1) a concealment of purpose, (2) a substantial period of watching and waiting for an opportune time to act, and (3) … a surprise attack on an unsuspecting victim from a position of advantage.’ ” ’ ” ’ ” (People v. Parker (2022) 13 Cal.5th 1, 58.) On the other hand, “[u]nder the doctrine of imperfect self-defense, … ‘[i]f a person kills … in the unreasonable but good faith belief in having to act in self-defense, the belief negates what would otherwise be malice, and that person is guilty of voluntary manslaughter … , not murder.’ ” (Schuller, supra, 15 Cal.5th at p. 243.) 12 to question, where the prosecutor asked Alvarez, “you didn’t research how to get away with murdering [Fierro] too?” However, this was in reference to Alvarez’s internet search history, which included the search “how to get away with murder.”7 2. Prosecutorial Error Prosecutorial error, as a matter of state law, occurs when a prosecutor “engage[s] in deceptive or reprehensible tactics in order to persuade the trier of fact to convict.” (People v. Lightsey (2012) 54 Cal.4th 668, 718.) “In order to be entitled to relief under state law, defendant must show that the challenged conduct raised a reasonable likelihood of a more favorable verdict.” (People v. Blacksher (2011) 52 Cal.4th 769, 828, fn. 35.) A prosecutor’s actions violate federal constitutional protections when there is “a pattern of conduct that is serious and egregious, such that the trial is rendered so unfair that the resulting conviction violates the defendant’s right to due process of law.” (Lightsey, at p. 718.) Relief is unavailable under federal law if “the challenged conduct was … harmless beyond a reasonable doubt.” (Blacksher, at p. 828, fn. 35.) 3. Analysis As the People acknowledge, “it would be improper for a prosecutor to use the term ‘murder’ in questioning a witness about an unadjudicated killing.” (People v. Price (1991) 1 Cal.4th 324, 480.) Nonetheless, there was overwhelming evidence of Alvarez’s guilt, including his extensive internet 7 Alvarez also cites several instances where witnesses referred to the shooting as “murder.” Alvarez did not object to these statements during trial, nor does he explain how these witnesses’ statements are attributable to the prosecutor. 13 research and attempt to delete it; his obsession with A.G.; his firearm training shortly after learning of A.G. and Fierro’s engagement; the manner in which he shot Fierro; his use of his brother’s car, dressing in black, and leaving his phone at home during the killing; and his flight from the crime scene and lies he told to the police. Further, the trial court instructed the jury on the definition of murder and that it must decide “what the facts are … based solely on the evidence,” “nothing that the attorneys say is evidence,” and “their questions are not evidence.” We presume the jury followed the court’s instructions, basing its murder verdict on the evidence and not on how witnesses and attorneys characterized the killing during trial. (People v. Stayner (2026) 19 Cal.5th 395, 531 [“Jurors are presumed to follow the court’s instructions.”].) Finally, the jury not only found that Alvarez murdered Fierro, but that he did so “by means of lying in wait.” (§ 190.2, subd. (a)(15).) Under these circumstances, any prosecutorial error was harmless beyond a reasonable doubt. C. There Is No Cumulative Error Alvarez argues the cumulative effect of the trial errors requires reversal of the judgment. We disagree. “Under the ‘cumulative error’ doctrine, ‘a series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error.’ [Citation.] ‘The “litmus test” for cumulative error “is whether defendant received due process and a fair trial.” ’ ” (People v. Thomas (2021) 64 Cal.App.5th 924, 971 (Thomas).) The errors discussed above, whether considered individually or collectively, were harmless and did not deprive Alvarez of due process or a fair trial. We therefore reject Alvarez’s claim of cumulative error. (Thomas, supra, 64 Cal.App.5th at p. 971 [“ ‘Lengthy criminal trials are rarely perfect, 14 and this court will not reverse a judgment absent a clear showing of a miscarriage of justice.’ ”].) D. Alvarez’s LWOP Sentence Is Not Cruel and/or Unusual Alvarez argues that his mandatory LWOP sentence is cruel and usual based on his “severe developmental disability” and the nature of the offense. He claims that his mental deficits influenced his understanding of the events leading to the shooting and have caused him to be assaulted while in custody. Alvarez contends that section 1385.1, which prohibited the trial court from imposing a lesser sentence, is therefore unconstitutional as applied to him. We disagree. 1. Cruel and/or Unusual Punishment The federal Constitution prohibits “ ‘cruel and unusual’ punishment,” while the California Constitution prohibits “ ‘[c]ruel or unusual’ punishment.” (People v. Baker (2018) 20 Cal.App.5th 711, 723.) “ ‘Although articulated slightly differently, both standards prohibit punishment that is “grossly disproportionate” to the crime or the individual culpability of the defendant.’ [Citation.] ‘The touchstone in each is gross disproportionality.’ ” (Id. at p. 733.) “ ‘A defendant has a considerable burden to overcome when he challenges a penalty as cruel or unusual.’ ” (People v. Johnson (2010) 183 Cal.App.4th 253, 296.) Indeed, excessive punishment prohibitions “ ‘will rarely apply to those serious offenses and offenders currently subject by statute to life-maximum imprisonment.’ ” (In re Williams (2020) 57 Cal.App.5th 427, 438 (Williams).) “ ‘ “Whether a punishment is cruel or unusual is a question of law for the appellate court, but the underlying disputed facts must be viewed in the light most favorable to the judgment.” ’ ” (People v. Abundio (2013) 221 Cal.App.4th 1211, 1217 (Abundio).) 15  2. Analysis The record does not support Alvarez’s claim that he suffered from a “severe developmental disability.” Dr. Malek determined that Alvarez, who was 30 years old at the time of the offense, was intelligent and high functioning. Alvarez was not diagnosed with any mental deficits as a child, he was multi-lingual, he held numerous jobs, he graduated from college, and was pursuing a master’s degree. Significantly, Dr. Malek testified that ASD and OCD did not prevent goal-oriented behavior, and the pre-planned nature of the killing reflects a high degree of culpability. (See, e.g., Williams, supra, 57 Cal.App.5th at p. 438 [“The United States and California Supreme Courts have recognized there is no crime more depraved or more injurious than intentional first degree murder.”].) As for the nature of the offense, Alvarez researched, planned, practiced, and carried out the murder of his ex-girlfriend’s fiancé, using a surprise attack to shoot the victim six times, including four times in the head. Despite Alvarez’s ASD and OCD diagnoses, an LWOP sentence is not grossly disproportionate to these circumstances. (See, e.g., People v. Acosta (2021) 60 Cal.App.5th 769, 772 [LWOP sentence for 21 year old with high- functioning ASD not cruel and unusual punishment]; Abundio, supra, 221 Cal.App.4th at p. 1221 [“The planning in which appellant engaged, as well as the unprovoked and vicious nature of the crime lead us to conclude that appellant’s [LWOP] sentence is not grossly disproportionate to the nature of the offense or to appellant’s culpability.”].) 16  IV. DISPOSITION The judgment is affirmed. RUBIN, J. WE CONCUR: MCCONNELL, P. J. DATO, J. 17