Filed 9/30/26 P. v. Rivera CA1/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
A174998
v.
JOSE RIVERA, (San Francisco County
Super. Ct. Nos. CRI-1778175,
Defendant and Appellant.
SCN17497001)
In 2001, defendant Jose Rivera pleaded guilty to voluntary
manslaughter, three counts of attempted murder, and one count of assault
with a firearm and admitted personal use of a firearm in committing
voluntary manslaughter.
In 2022, defendant filed a petition for resentencing under former Penal
Code1 section 1170.95 (now § 1172.6), which the trial court denied following
an evidentiary hearing. In a prior appeal, we reversed the 2022 order
denying the petition and “remanded to the trial court to decide the petition
under section 1172.6(d)(3), applying the appropriate standard of proof.”
(People v. Rivera (Nov. 21, 2024, A166280) [nonpub. opn.].)
1 Undesignated statutory references are to the Penal Code.
1
On remand, the trial court again denied defendant’s resentencing
petition, and defendant appeals. His only appellate claim is that the
prosecution failed to prove malice. Specifically, defendant argues the
evidence would not permit a reasonable trier of fact to find beyond a
reasonable doubt that he “did not act under an actual belief in the need to
defend against imminent harm.” We disagree and affirm.
FACTUAL AND PROCEDRUAL BACKGROUND
Underlying Charges, Plea, and Sentence
In 1998, the San Francisco District Attorney charged defendant and
codefendant Marcelo Perez with one count of murder (§ 187, subd. (a); count
1) and five counts of attempted murder (§§ 664, 187; counts 2 through 6). As
to the murder and three of the attempted murder counts (counts 2, 3, 5), it
was alleged that defendant personally discharged (§ 12022.53, subd. (c)) and
personally used (§ 12022.5, subd. (a)) a firearm in committing the offense. No
firearm allegations were made against codefendant Perez. The complaint
alleged that on or about April 15, 1998, defendant and Perez killed Jesus S.
(count 1) and that on or about the previous day, April 14, defendant and
Perez attempted to murder James F. (count 2), John D. (count 3), Ariel C.
(count 4), “Indio” or John Doe No. 1 (count 5), and “Goose” or John Doe No. 2
(count 6).
Pursuant to a negotiated disposition, defendant pleaded guilty to
voluntary manslaughter (§ 192, subd. (a); amended count 1), admitting
personal gun use in the commission of the offense (§ 12022.5), three counts of
attempted murder (counts 2, 3, and 4), and one count of assault with a
firearm (§ 245, subd. (a)(2); amended count 5). Defendant was sentenced to
29 years in prison.
2
Current Proceedings
Petition for Resentencing, Denial, Appeal, and Remand
In 2022, defendant filed a petition for resentencing, and the trial court
issued an order to show cause. Following an evidentiary hearing, the trial
court denied the petition for resentencing. Defendant appealed, and we
reversed because we agreed with defendant that the trial court applied an
incorrect standard in deciding the petition. We remanded for the trial court
to consider the petition under the appropriate law.2
The Trial Court’s Decision on Remand
On remand, the prosecution opposed the petition, relying on the same
evidence it had presented at the evidentiary hearing in 2022. The trial court
denied the petition for resentencing, stating, “The Court finds that the
prosecution has proved beyond a reasonable doubt that Mr. Rivera is guilty of
the murder and attempted murders charged here as amended by the changes
to Section 188 or 189 effective January 1st, 2019.”
The Prosecution’s Evidence
The prosecution relied on the preliminary hearing transcript and the
transcript of a police interview of defendant, as well as the hearing transcript
for defendant’s change of plea.
2 However, we rejected defendant’s claim that the prosecution failed to
present sufficient evidence to prove he was guilty of murder under a still-
valid theory. Had this claim succeeded, defendant would have been entitled
to relief as a matter of law, and we would have ordered the trial court to
enter an order granting the petition as to the voluntary manslaughter
conviction rather than remanding for the trial court to decide the petition in
the first instance.
3
Preliminary Hearing Transcript
James F. lived on Woodward Street in San Francisco. He testified that,
shortly before 2:00 a.m. April 14, 1998, he “got drawn into” a fight at 16th
and Mission Streets and “slapped” “[s]ome girl or something.”3 He then ran
and walked home. On Woodward Street, James saw his cousin, John D., and
stopped to talk with him in front of his house. A gray Nissan with tinted
windows turned onto Woodward from 14th Street and stopped in front of
them. The front passenger of the Nissan climbed out the window and “hung
out the window and came over the roof.” James got down on the ground and
heard five or six shots. He could not identify the shooter. The next day, April
15, James heard some shots when he was inside his house. He looked outside
to see if his friends were all right, and it did not appear that anyone had been
shot.
John D. testified he and his cousin James were standing inside the gate
of James’s house when “a little gray car” came by, and shots were fired at
them from the passenger side of the car.4 John saw that the gun was a
revolver. He was grazed in the left arm.
Uriel C. testified that he was visiting James F. and John D. at their
house on Woodward Street during the day on April 14, 1998 (that is, after the
2:00 a.m. shooting incident James and John described).5 His friend Indio was
there, too. He saw “a car roll up,” and “they just started shooting.” Five or
3 At the time of the hearing, James was on probation for drug sales; he
told a police officer he did not want to be a witness in this case.
4 In cross-examination, John testified that James was with another
person when he (James) arrived at his house. But John did not know who the
person was.
5 Uriel C. appears to be the person identified in the complaint as “Ariel”
C., the alleged attempted murder victim in count 4.
4
six shots were fired. Uriel described the car as “primer” colored. Someone
got out of the car; Uriel could not say if it was the passenger or the driver, but
he knew “[t]hey were Mexicans.” The shooting occurred in the afternoon. In
cross-examination, Uriel testified he, John D., and James F. were all in the
same gang, and they are Norteños.
Defendant’s attorney stipulated that on or about 1:30 p.m. on April 15,
1998, Jesus S. was shot and killed on Woodward Street near James F.’s
house.
San Francisco Police Officer Adriano Castro testified that on April 18,
1998, he stopped a gray Nissan on 16th Street. Codefendant Perez was
driving the car, defendant was in the front passenger seat, and another
passenger, Gregory Sanchez, sat in the back seat on the passenger side. As
Officer Castro approached the car, he saw Sanchez pushing a magazine of a
handgun under the passenger seat. The three men in the Nissan were taken
into custody. In a search of the Nissan, Castro found a semiautomatic
weapon under the driver’s seat and a loaded magazine under the front
passenger’s seat.
Castro acted as Spanish language translator for police interviews of
defendant and Perez. In an interview with Perez on April 19, 1998, Perez
told the police that he, defendant, and a woman named Marlene were
“involved in an altercation with some [N]orteños” at 16th and Mission around
1:30 in the morning the previous Tuesday (April 14, 1998).6 Marlene was
pistol-whipped, and Perez and defendant were hit. They learned the
Norteños lived on Woodward, and defendant got a gun, but Perez “doesn’t
6 Perez’s statements to the police were introduced through Castro’s
testimony only. The quoted statements are Castro’s testimony describing
what Perez told the police, not direct quotes from Perez.
5
know how he got it.” They drove to “Woodward Alley” and saw three to five
“Latin males” they thought were the Norteños who had assaulted them on
Mission Street. Perez said “that Mr. Rivera told him to slow down. Mr.
Rivera at this time stuck half his body out the window, and [Perez] heard
some shots.” Perez said he was not sure whether the shots were coming from
the men on the street or defendant. They drove away, and Perez told the
police they returned to the location two more times.
Castro testified that Perez reported that he and defendant drove to the
location again the same day at 1:30 p.m. (that is, about 12 hours after the
initial altercation). Defendant told Perez to wait for him, and defendant got
out of the car. A few seconds later, Perez heard four or five shots, then
defendant returned to the car and told Perez to take off. Perez said he did
not see defendant or anyone else with a gun.
According to Castro, Perez told the police that he and defendant drove
nearby the following day (April 15, 2018) around 1:30 p.m. They parked a
half a block away from Woodward Alley and walked to the corner of
Woodward and 14th. Perez stayed at the corner, and defendant continued.
Perez told the police he “asked [defendant] to come back several times,” but
defendant continued walking. Perez “saw a gentleman on a bicycle come by
him on the same side of the street . . . . The gentleman continued on his
bicycle north, and the next thing [Perez] heard was several shots.” Perez got
scared and ran to his car; defendant ran to the car, too, and defendant got in
the driver’s seat, and they drove away. Perez said he did not see anything
happen to anybody.
Castro also described the police interview with defendant. Castro
testified that defendant’s “story was almost the same [as Perez’s] but with
some variations.” According to Castro, defendant “was very vague” and
6
“[t]here was a lot of confusion of how many times they went up there.”
Defendant said in the first incident, they drove to Woodward and “there were
some shots exchanged between the [N]orteños and themselves as they were
driving by the first time.”7 Defendant told the police, “the second time they
drove by, . . . no shots [were] exchanged.” On a third occasion, defendant,
Perez, and a third person called Goyo8 drove down Woodward, and “the same
[N]orteños that they had had the shootings with in the past began to shoot at
them.” Defendant said Goyo, who was sitting in the back seat, shot about
five rounds at the Norteños and defendant shot twice. He said the Norteños
fired at them about seven times.
Castro testified that defendant did not remember a bicyclist at first.
But Castro testified, “Towards the end of the interview [defendant]
remembers seeing somebody on a bicycle and somebody on the bicycle being
shot by [defendant] during the exchange of fire.”
Another police officer, James Miller, testified that he spoke with
codefendant Perez at the police station on April 18, 1998. Perez asked why
he was going to jail, and Miller told him a gun was found in his car.
According to Miller, Perez responded that the gun belonged to his friend,
“ ‘[t]he passenger that was sitting next to me.’ ” Miller testified that Perez
said, “ ‘He was supposed to tell you,’ referring to Mr. Rivera, that the drugs
and the gun [are] his.’ ”
7 Again, the quotes in this and the following paragraph are Castro’s
statements at the preliminary hearing describing what Rivera said, not direct
quotes of Rivera’s statements during the police interview.
8 Castro testified that “Goyo” was Gregory Sanchez, who was sitting in
the back seat of the gray Nissan at the traffic stop on April 18, 1998.
7
Police Interview Transcript
In his interview with two inspectors and Castro (who was translating),
defendant said he wanted to tell them what happened. Initially, he told the
police he was on 16th and Mission with his cousin (Perez) and Goyo when two
or three Norteños “pulled the gun on me and the girl” because he had a gold
crucifix.9 Defendant said, “they started to take away my . . . chain.” The
Norteños “hit [the girl] in the face” with the “tip of the barrel” and “they fired
a . . . shot at me but it didn’t go off.” Defendant and his companions “left in
the car.” Then they “ran into” the Norteños. Defendant said the Norteños
“were already looking for us.” Asked why, defendant responded, “Oh, well, I,
I think that they wanted to get even,” although he said, “we didn’t do
anything to them.”
Defendant referred to multiple incidents with the Norteños. He
described an incident where “we had a weapon” and “we took it out on them,”
and “they then started shooting at us.” Defendant said this occurred at 15th
and Woodward, and “we started shooting at each other.” He said the
Norteños fired first, and then Goyo shot back. The Norteños “had big
weapons” and “they fired about six or seven” shots. Goyo “fired about five”
shots. Defendant admitted that he also shot at the Norteños, stating, “I had
a weapon,” “but I, I only fired two shots.”
The police asked when the next shooting was. Defendant responded, “it
was when we ran into each other there on Fifteenth” and Woodward. Castro
confirmed, “The third time,” and defendant responded, “Yes.” Defendant said
9 Here, the quotes are of from the translated transcript of the police
interview.
8
the Norteños shot at them, but, when asked whether he and his companions
also shot, he responded, “No, we didn’t shoot.”10
The police asked about the “last time on Woodward” “when you saw
that guy on the bicycle.” At first, defendant said he “didn’t see . . . any guy,
we shot at each other, but from the car.” Later, however, he was asked to
demonstrate where people were on Woodward, and defendant said, “The one
with the bike was here,” indicating on a diagram of the streets. He said it
“was not intentional,” and “I didn’t want to hit anybody,” although he agreed
he was firing at the Norteños. (Underlining omitted.)
DISCUSSION
A. Petitions for Resentencing and Standard of Review
Effective January 1, 2019, Senate Bill No. 1437 (2017-2018 Reg. Sess.)
narrowed the felony murder rule significantly for defendants who were not
actual killers and eliminated second degree murder liability based on the
natural and probable consequences doctrine. (People v. Strong (2022) 13
Cal.5th 698, 703, 707, fn. 1; §§ 188, subd. (a)(3), 189, subd. (e).) It also
provided a resentencing procedure for those convicted of murder under the
former law to have their convictions set aside if they could not be convicted of
murder under the law as amended by Senate Bill No. 1437. (People v. Lewis
(2021) 11 Cal.5th 952, 959; see § 1172.6.)
10 Rivera’s account was garbled. The police asked, “And did you shoot
the second time?” He said, “Yes.” Asked who he shot at, Rivera responded,
“No, well, I fired at the car” the Norteños were in. He said he “didn’t hit
anybody.” Earlier in the interview, Rivera said, “the first time we shot and
then the second time we didn’t anymore,” and “the second time” was when
“we met on Sixteenth street [and Valencia], the red car.” The police did not
follow up to ask about the red car.
9
Under section 1172.6’s resentencing procedure, when a petitioner has
made a prima facie case for relief, the trial court issues an order to show
cause and (unless the prosecution stipulates to resentencing) holds an
evidentiary hearing. (§ 1172.6, subds. (c) and (d).) At the evidentiary
hearing, “the burden of proof shall be on the prosecution to prove, beyond a
reasonable doubt, that the petitioner is guilty of murder or attempted murder
under California law as amended by the changes to Section 188 or 189 made
effective January 1, 2019.” (§ 1172.6, subd. (d)(3).)
The trial court’s role at an evidentiary hearing under section 1172.6 “is
to act as an independent fact finder and determine, in the first instance,
whether the petitioner committed murder [or attempted murder] under the
law as amended by Senate Bill No. 1437.” (People v. Guiffreda (2023) 87
Cal.App.5th 112, 123.)
In reviewing a trial court’s denial of a resentencing petition under
section 1172.6, we review factual findings for substantial evidence, and we
review de novo the court’s application of the law to those facts. (People v. Hill
(2024) 100 Cal.App.5th 1055, 1066.) “[W]e consider the whole record in the
light most favorable to the superior court’s findings [citation], and we
presume ‘ “every fact in support of the judgment the trier of fact could have
reasonably deduced from the evidence.” ’ [Citation.] We ask ‘whether
substantial evidence, defined as reasonable and credible evidence of solid
value, has been disclosed, permitting the trier of fact to find guilt beyond a
reasonable doubt.’ [Citation.] And based on this whole record review, we
‘ “determine whether any rational trier of fact could have found the essential
elements of the crime . . . beyond a reasonable doubt.” ’ [Citation.] Finally,
our Supreme Court has held that whether the prosecutor relied upon direct
or circumstantial evidence, if the trier of fact’s determination is supported,
10
reversal is not warranted, even where ‘ “ ‘the circumstances might also
reasonably be reconciled with a contrary finding.’ ” ’ ” (Ibid.)
“A reversal for insufficient evidence ‘is unwarranted unless it appears
“that upon no hypothesis whatever is there sufficient substantial evidence to
support” ’ the [trier of fact]’s verdict.” (People v. Zamudio (2008) 43 Cal.4th
327, 357.)
B. Sufficiency of the Evidence of Malice
Defendant argues there was no substantial evidence to support a
finding that defendant harbored malice required for murder because “no
rational trier of act could find that the prosecution proved to a near certainty
that [he] was not acting in self-defense when he participated in” the shooting
that killed Jesus S. We are not persuaded.
1. Malice and its Negation
“Murder is the unlawful killing of a human being . . . with malice
aforethought.” (§ 187, subd. (a).) Malice may be express or implied. (§ 188,
subd. (a).) “Implied malice requires proof of both a physical act and a mental
state. Physically, a defendant must perform an act whose natural
consequences are dangerous to life, or put another way, defendant must
perform ‘ “an act that involves a high degree of probability” ’ of death.
[Citation.] To establish the mental state required for implied malice, the
defendant must deliberately perform the act with a conscious disregard for
life, knowing the act endangers another’s life.” (In re Ferrell (2023) 14
Cal.5th 593, 600.)
“Self-defense, when based on a reasonable belief that killing is
necessary to avert an imminent threat of death or great bodily injury, is a
complete justification, and such a killing is not a crime. (People v. Elmore
(2014) 59 Cal.4th 121, 133–134, italics omitted.) When a person kills with
11
“an actual but unreasonable belief” in the need for self-defense (imperfect
self-defense), it is said that the person “ ‘does not harbor malice and commits
no greater offense than manslaughter.’ ” (Id. at p. 134.) In either case,
malice is lacking “[b]ecause a killer’s genuine belief in the need for self-
defense negates malice.” (Id. at pp. 147, 152 (conc. & dis. opn. of Kennard,
J.).)
“[W]hen a killing is proved to have been committed by the defendant,
and nothing further is shown, the presumption of law is that it was malicious
and an act of murder.” (People v. Frye (1992) 7 Cal.App.4th 1148, 1154.)
“[U]nder California law the defendant must raise the issue [of self-defense]
but does not bear any burden of proof or persuasion.” (Id. at pp. 1154–1155.)
Section 189.5, subdivision (a), provides, “Upon a trial for murder, the
commission of the homicide by the defendant being proved, the burden of
proving circumstances of mitigation, or that justify or excuse it, devolves
upon the defendant, unless the proof on the part of the prosecution tends to
show that the crime committed only amounts to manslaughter, or that the
defendant was justifiable or excusable.” Section 189.5 “ ‘reflects the
commonsense observation that the circumstances of a killing may and often
do suggest an inference of malice. Under such circumstances, a prima facie
case of murder is established and the burden of producing evidence negating
malice falls to the defendant who is, needless to say, in the best position to
produce such evidence. Where either the prosecution evidence or evidence
presented by the defendant is sufficient to raise a reasonable doubt as to
whether the killing was malicious, the prosecution bears the burden of
persuading the jury as to the defendant’s actual mental state. Where such
evidence is nonexistent, however, the prosecution’s burden has already been
met.’ ” (People v. Frye, at p. 1155.)
12
2. Analysis
Defendant argues the “evidentiary record concerning the April 15
shooting is notably limited” and the “only accounts of the incident came from
[defendant] and Perez.” He acknowledges that the trial court was free to
reject defendant’s account of the shooting, but he asserts, “such rejection is
not proof that the April 15 shooting transpired differently.”
Defendant thus suggests that if the trial court believed defendant’s
statements that he personally shot at his rivals while the victim (“[t]he one
with the bike”) was present, then the trial court was required also to accept
defendant’s account in a manner that would negate an inference of malice.
But a “trier of fact may believe and accept a portion of the testimony of a
witness and disbelieve the remainder. On appeal that portion which
supports the judgment must be accepted, not that portion which would
defeat, or tend to defeat, the judgment.” (People v. Thomas (1951) 103
Cal.App.2d 669, 672.) For example, a trier of fact is free to disbelieve a
defendant’s “claim that he was afraid and acting in self-defense.” (People v.
Morales (2021) 69 Cal.App.5th 978, 989.)
In this case, the trial court reasonably could have believed that portion
of the evidence that showed defendant and his companions, on three different
occasions over the course of two days, went to a location where they thought
their rivals would be and defendant shot at them, while disbelieving
defendant’s self-serving statements that the suspected Norteños always shot
first. (See People v. Silva (2001) 25 Cal.4th 345, 369 [“[a] rational trier of fact
could disbelieve those portions of defendant’s statements that were obviously
self-serving”].)
As we explained in defendant’s first appeal: “Rivera told the police that
he and his confederates had multiple confrontations with persons he believed
13
were Norteños and that, during one of the confrontations, he fired at the
Norteños two times and his confederate shot at the Norteños five times. He
also said a person on a bicycle was nearby during the shooting.
“Taken together, this was sufficient evidence for a reasonable trier of
fact to find Rivera is guilty of murder under current law. A reasonable trier
of fact could find that Rivera was the actual killer and he acted with implied
malice. (§§ 187, subd. (a) [murder is an unlawful killing ‘with malice
aforethought’], 188, subd. (a)(2) [‘Malice is implied when no considerable
provocation appears, or when the circumstances attending the killing show
an abandoned and malignant heart’]; People v. Rivera (2021) 62 Cal.App.5th
217, 231[11] [implied malice is ‘ “when a person willfully does an act, the
natural and probable consequences of which are dangerous to human life,
and the person knowingly acts with conscious disregard for the danger to life
that the act poses” ’].) Or a reasonable trier of fact could find that Rivera
aided and abetted his confederate in the killing and that Rivera harbored an
intent to kill. That he may have intended to kill only suspected Norteños and
not the victim would not negate a finding of malice. (See People v. Scott
(1996) 14 Cal.4th 544, 546 [under ‘California’s common law doctrine of
transferred intent, a defendant who shoots with the intent to kill a certain
person and hits a bystander instead is subject to the same criminal liability
that would have been imposed had “ ‘the fatal blow reached the person for
whom intended’ ” ’].)”
In short, the evidence supports an inference of malice and the trial
court was not required to believe the self-serving portions of defendant’s
11 To be clear, this 2021 appellate decision involves a different
individual with the same last name as defendant.
14
statements to police. Accordingly, we reject defendant’s claim of insufficiency
of the evidence.
DISPOSITION
The order denying defendant’s petition under section 1172.6 is
affirmed.
_________________________
Miller, J.
WE CONCUR:
_________________________
Stewart, P. J.
_________________________
Richman, J.
A174998, People v. Rivera
15