P. v. Rivera
Filed 8/16/13 P. v. Rivera CA4/2
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This opinion has not been certified for publication or ordered published
for purposes of rule 8.1115.
THE COURT OF APPEAL OF THE STATE OF
APPELLATE DISTRICT
TWO
THE PEOPLE,
Plaintiff
and Respondent,
v.
DAVID ANTHONY RIVERA,
Defendant
and Appellant.
E057463
(Super.Ct.No. RIF1202319)
MODIFYING OPINION AND DENYING PETITION FOR REHEARING
[NO CHANGE IN JUDGMENT]
THE COURT
The
petition for rehearing filed on August 2, 2013, is denied. The opinion filed in this matter on July 23, 2013,
is modified as follows: On page 4, remove footnote 3.
This
modification does not change the judgment.
NOT TO BE PUBLISHED IN OFFICIAL REPORT
McKINSTER
We concur: Acting
P. J.
RICHLI
J.
KING
J.
Filed 7/23/13 P. v. Rivera CA4/2 (unmodfied version)
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.
IN
THE COURT OF APPEAL OF THE STATE OF
FOURTH
APPELLATE DISTRICT
DIVISION
TWO
THE
PEOPLE,
Plaintiff and Respondent,
v.
DAVID
ANTHONY RIVERA,
Defendant and Appellant.
E057463
(Super.Ct.No. RIF1202319)
OPINION
APPEAL from the Superior
Court
of
Riverside
County. Edward D. Webster, Judge. (Retired judge of the Riverside Super. Ct.
assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal.
Const.) Affirmed.
Jeanine G. Strong, under appointment by the Court of
Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Defendant David Anthony Rivera
appeals from his conviction on one count of residential burglary, following a
jury trial. We will affirm the
conviction.
PROCEDURAL
HISTORY
Defendant was charged with one count of residential
burglary, with the enhancing allegation that a person other than an accomplice
was present within the residence at the time of the burglary. (Pen. Code, §§ 459, 667.5, subd. (c)(21);
count 1.)
title="">[1] He was also charged with misdemeanor use of
force against a peace officer. (§ 243,
subd. (b); count 2.)
name="_ftnref2" title="">[2] Two prison priors were also alleged. (§ 667.5, subd. (b).)
Prior to trial, defendant waived his right to a jury
trial as to count 2 and pleaded guilty.
A jury found defendant guilty on count 1 and found the
section 667.5, subdivision (c)(21) allegation true. In a separate proceeding, defendant waived
his right to a jury trial on the prison prior allegations. He admitted both allegations, which the
court then found true.
The court sentenced defendant to the middle term of four
years on count 1 and imposed two consecutive one-year terms for the prison
priors. The court also imposed a
concurrent term of six months in county jail on count 2.
Defendant filed a timely notice of
appeal from the felony conviction only.
FACTS
On April 24, 2012,
defendant entered a garage attached to a residence belonging to and occupied by
John Gouveia. Gouveia had just returned
from shopping and had left the garage door open while he unloaded the car. While Gouveia was inside the house, defendant
entered the garage and took a purple radio and a box of trash bags. A neighbor saw defendant enter and leave the
garage and alerted Gouveia. Gouveia and
his neighbor walked in the direction defendant had gone and saw him a few
houses down the street. The two men
stopped him, and Gouveia recognized the items as his. Defendant attempted to run, but the two men
again stopped him and called the police.
DISCUSSION
We
appointed counsel to represent defendant on appeal. After examination of the record,
counsel filed an opening brief raising no issues and asking this court to
independently review the record. We
offered defendant the opportunity to file any supplemental brief he deemed
necessary, but he did not do so.
We
have examined the entire record. We are
satisfied that defendant’s attorney has fully complied with her
responsibilities and that no arguable issues exist. (People
v. Kelly (2006) 40 Cal.4th 106, 109-110; People v. Wende (1979) 25 Cal.3d 436, 441.)
In
reaching this conclusion, we examined several matters mentioned by appointed
counsel but not argued. First, we
consider the sufficiency of the evidence to support both the finding that the
garage was attached to the residence so as to be a part of the residence
for
purposes of residential burglary and the finding that a person other than an
accomplice was present within the residence at the time of the burglary for
purposes of the enhancement alleged under section 667.5, subdivision (c)(21). Substantial evidence supports both the guilty
verdict and the enhancement.
name="_ftnref3" title="">[3]
Second,
we consider the sufficiency of the evidence to support instructing the jury
that if the defendant fled or tried to flee immediately after the crime was
committed, that conduct may be deemed to show a consciousness of guilt. (CALCRIM No. 372.) Again, substantial evidence supports the
decision to give the instruction.
Third,
we consider whether the trial court abused its discretion by declining to
strike the prison prior enhancements and/or the section 667.5, subdivision
(c)(21) enhancement. In deciding not to
exercise its discretion in this manner, the trial court considered both the
circumstances of the current offense and defendant’s very extensive history of
convictions and probation violations and determined that on balance, the
enhancements should not be stricken.
There was no abuse of discretion.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting
P.J.
We
concur:
RICHLI
J.
KING
J.
statutory citations refer to the Penal Code.
2 was based on defendant spitting on one of the arresting officers.
