Filed 10/19/26 P. v. Rivera CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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 CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
THE PEOPLE, C103225
Plaintiff and Respondent,
(Super. Ct. No. 23FE005887)
v.
VICTOR MANUAL RIVERA,
Defendant and Appellant.
A jury found defendant Victor Manuel Rivera guilty of assault with a deadly
weapon and other charges after he attacked his wife and a coworker at a Goodwill
donation center. Defendant was sentenced to two years in prison. He now appeals,
arguing that the trial court abused its discretion in denying probation. We affirm.
I. BACKGROUND
In 2023, defendant and M.D. had been married for several years, but the
relationship had deteriorated, and M.D. had told defendant she wanted to separate. M.D.
had started dating her coworker, J.R., but she had not told defendant. In April 2023, J.R.
dropped M.D. off at her home, and defendant pulled up behind him in a car. Defendant
told J.R. to stay away from his wife and angrily confronted M.D., leading her to start
staying at a hotel.
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A few days later, M.D. and J.R. were at the Goodwill facility when defendant
entered holding a metal golf club. He pointed the club at J.R. and said, “ ‘Do you
remember me, do you remember me?’ ” When M.D. came to the doorway and asked
what he was doing there, defendant started swinging the golf club at her. M.D. told him
to stop and tried to avoid being struck, but at one point received a grazing blow to her
arm. Defendant told M.D., “ ‘[N]obody can have you—nobody—if I can’t have you,
nobody will. We’re gonna die today.’ ”
At some point the club fell to the floor, and defendant started punching, hitting,
and grabbing M.D. He knocked her to the ground, and she hit her head on the concrete.
He put her in a chokehold and started biting her.
J.R. had gone to the front of the store to call 911, and when he returned, he tried to
pull defendant off M.D., and defendant started punching him. M.D. was able to get away
from defendant, and she called 911. J.R. heard defendant say he had a knife, but neither
he nor M.D. saw any knife until after the episode.
M.D. and J.R. tried to shut defendant in the breakroom to keep him away, and
eventually they ran outside the Goodwill facility and tried to shut defendant inside the
facility. Defendant broke the glass door and was able to get out of the building. M.D.
and J.R. fled back inside the building, and defendant followed them after kicking out
more glass in the door. They shut themselves inside a bathroom, and defendant tried to
force his way in.
A deputy arrived and found defendant pulling on the door to the bathroom.
Defendant refused multiple commands to stop pulling on the door and repeated, “ ‘I don’t
care, shoot me’ ” when the deputy drew his taser. Defendant eventually was able to open
the bathroom door, but the deputy shot him with the taser and he fell to the ground. M.D.
and J.R. left the bathroom, and officers eventually were able to handcuff defendant and
take him into custody. After defendant had been arrested, he told a deputy, “I slipped.
She’s lucky she’s alive.”
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Law enforcement collected the golf club and also found a folding knife in the
parking lot near the front of the store. M.D. thought defendant was intoxicated and had
seen a can of beer fall out of defendant’s pocket in the break room. One of the arresting
deputies later testified that defendant’s conduct was consistent with someone intoxicated
with alcohol.
The People charged defendant with assault with a deadly weapon (Pen. Code,
§ 245, subd. (a)(1)—count one), 1 criminal threats (§ 422—count two), domestic violence
battery (§ 273.5, subd. (a)—count three), vandalism (§ 594, subd. (a)—count four), and
resisting or obstructing law enforcement (§ 148, subd. (a)(1)—count five). It was further
alleged that defendant was armed with or used a deadly weapon (Cal. Rules of Court, rule
4.421(a)(2)), 2 the victim was particularly vulnerable (rule 4.421(a)(3)), and the defendant
engaged in violent conduct that indicated a serious danger to society (rule 4.421(b)(1)).
At trial, the jury heard testimony from M.D., J.R., and the initial responding
deputy, and also saw security footage and the deputy’s body camera video of the episode.
The jury found defendant guilty of each count. The jury found the allegation
under rule 4.421(b)(1)—violent conduct indicating a serious danger to society—not true
as to all counts. The jury found the allegation under rule 4.421(a)(2)—use of a deadly
weapon—true as to counts two and three, but found it not true as to count one, assault
with a deadly weapon. 3
The probation department prepared a report recommending probation because, in
its view, the circumstances of the crime were substantially less serious than those
1 Undesignated statutory references are to the Penal Code.
2 Undesignated rule references are the California Rules of Court.
3 On its own motion under section 1118.1, the trial court entered judgment for defendant
on the vulnerable victim aggravating circumstance allegation (rule 4.421(a)(3)).
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typically present in cases of assault with a deadly weapon, and defendant had no recent
history of committing similar crimes or crimes of violence. (Rule 4.413(c)(1)(a).) The
department also found, among other things, that defendant expressed a willingness to
abide by the terms of probation. (Rule 4.414(b)(3).)
At sentencing, defense counsel requested probation. He argued that defendant was
unlikely to reoffend because the incident was a “fluke” due to his failing marriage and his
strong intoxication, and he genuinely wanted to address his alcohol dependency through
treatment. Counsel further noted that defendant’s wife had requested that he get house
arrest with anger management treatment, and counsel argued that the case was
distinguishable from other domestic violence cases in that defendant and his wife had
broken up and were no longer communicating. Counsel also pointed out the serious
consequences defendant faced for any future misconduct, because he now had two strike
convictions on his record. Counsel acknowledged that the incident could have resulted in
much more harm, but asserted defendant’s prior criminal conduct was insignificant given
that his last offense was 30 years prior, and noted that defendant was 60 years old.
The People requested an upper term sentence of four years. They argued the
conduct was very serious, and defendant had shown planning by finding out if his wife
was at work, going to her workplace, and bringing deadly weapons with him. The People
asserted that defendant could have killed or seriously injured his wife if the coworker had
not been there, and noted that defendant did not stop pursuing his wife until he was tased
by law enforcement. The People also noted defendant’s prior assault conviction and his
statement to law enforcement after the arrest that his wife should be dead.
The trial court stated it had reviewed and considered the probation report,
including its recommendation of probation. The court indicated that it would not follow
that recommendation because of defendant’s violent conduct, specifically swinging a golf
club, which defendant acknowledged, and the court believed, could have killed his wife.
The court recognized defendant’s desire to turn his life around and his wife’s request that
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he avoid custody. However, the court found there were not unusual circumstances
warranting probation and declined to exercise its discretion to impose probation.
The court sentenced defendant to the lower term of two years in state prison on
count one. The court imposed and stayed a 16-month prison sentence on both counts two
and three pursuant to section 654. The court imposed six months in jail on counts four
and five, running concurrently to the prison sentence.
Defendant timely appealed.
II. DISCUSSION
Defendant contends that the trial court abused its discretion in finding the
presumption against probation was not overcome, relying on a circumstance in
aggravation found not true by the jury, as well as an inconsistent verdict.
In determining whether a case is “unusual,” courts apply the criteria listed in rule
4.413(c). (See rule 4.413(b).) That rule lists factors which “may” indicate the existence
of an unusual case. As the term “may” suggests, the provision is permissive, not
mandatory. (People v. Stuart (2007) 156 Cal.App.4th 165, 178.) The trial court is not
required to find a case unusual even when the relevant criteria are met. (People v.
Cattaneo (1990) 217 Cal.App.3d 1577, 1587.) Courts must construe the exception for
“unusual cases” narrowly to ensure the statutory limitations on probation have meaning.
(People v. Superior Court (Dorsey) (1996) 50 Cal.App.4th 1216, 1229.) Unusual cases
should be limited to “those matters in which the crime is either atypical or the offender’s
moral blameworthiness is reduced.” (Ibid.) The trial court “need not provide reasons for
declining to find a case ‘unusual’ so as to rebut any presumptive ineligibility for
probation.” (People v. Nuno (2018) 26 Cal.App.5th 43, 49.)
We review a trial court’s finding as to whether a case is unusual for abuse of
discretion. (People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 831.) The
defendant bears a heavy burden to meet this standard. (People v. Aubrey (1998) 65
Cal.App.4th 279, 282.) The trial judge’s discretion in determining whether to grant or
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deny probation is broad and will not be disturbed on appeal unless its decision is so
irrational or arbitrary that no reasonable person could agree with it. (People v. Stuart,
supra, 156 Cal.App.4th at pp. 178-179; accord, People v. Carmony (2004) 33 Cal.4th
367, 377 [“ ‘ “ ‘An appellate tribunal is neither authorized nor warranted in substituting
its judgment for the judgment of the trial judge’ ” ’ ”].)
We find no abuse of discretion. The trial court was aware of defendant’s
arguments that his crime was a result of untreated alcohol dependency and the stress of
his failing marriage, and that the crime was less serious than similar offenses. However,
the court rejected those arguments and viewed the crime as very serious, especially
considering that he was armed with a golf club that could have been used to kill his wife.
Indeed, defendant stated at the time of his arrest that his wife would have been dead if he
had not slipped, and his counsel conceded at sentencing that defendant could have killed
his wife. Nothing indicates the court misunderstood its discretion or failed to consider all
relevant factors, and the court acted well within its discretion when it found defendant's
case was not unusual.
Defendant argues that the trial court’s denial of probation was inconsistent with
the jury’s rejection of the aggravating circumstance that defendant engaged in violent
conduct indicating a serious danger to society. However, in considering whether to grant
probation, the trial court was not required to find any facts proven beyond a reasonable
doubt, in contrast to the jury’s consideration of the aggravating factors. (See § 1170,
subd. (b)(2).) Defendant also provides no authority, and we are unaware of any,
prohibiting the trial court from considering factors found not true by the jury. Indeed,
rule 4.414(c) specifically states that “[i]n determining the suitability of the defendant for
probation, the court may consider factors in aggravation and mitigation, whether or not
the factors have been stipulated to by the defendant or found true beyond a reasonable
doubt at trial by a jury or the judge in a court trial.” The trial court was permitted to find
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defendant’s crime very violent notwithstanding the jury’s rejection of a somewhat similar
allegation under rule 4.421(b)(1).
Defendant also argues that the trial court’s emphasis on his use of a deadly
weapon was error given the jury’s inconsistent verdict finding him guilty of assault with a
deadly weapon but rejecting the aggravating factor that he was armed with or used a
weapon at the time of the commission of the crime.
“As a general rule, inherently inconsistent verdicts are allowed to stand.
[Citations.] For example, ‘if an acquittal of one count is factually irreconcilable with a
conviction on another, or if a not true finding of an enhancement allegation is
inconsistent with a conviction of the substantive offense, effect is given to both.’
[Citation.] Although ‘ “error,” in the sense that the jury has not followed the court’s
instructions, most certainly has occurred’ in such situations, ‘it is unclear whose ox has
been gored.’ [Citation.] It is possible that the jury arrived at an inconsistent conclusion
through ‘mistake, compromise, or lenity.’ [Citation.] Thus, if a defendant is given the
benefit of an acquittal on the count on which he was acquitted, ‘it is neither irrational nor
illogical’ to require him to accept the burden of conviction on the count on which the jury
convicted.” (People v. Avila (2006) 38 Cal.4th 491, 600; see People v. Lewis (2001) 25
Cal.4th 610, 656 [“inconsistency may show no more than jury lenity, compromise, or
mistake, none of which undermines the validity of a verdict”].) This rule “applies equally
to inconsistent enhancement findings [citation], and to an enhancement finding that is
inconsistent with the verdict on a substantive offense.” (People v. Miranda (2011) 192
Cal.App.4th 398, 405.) In such cases, “inconsistent verdicts are allowed to stand if the
verdicts are otherwise supported by substantial evidence.” (Ibid.)
We do not speculate as to why the jury found not true the aggravating
circumstance allegation that defendant was armed with or used a weapon at the time of
the commission of the crime. Nevertheless, the evidence at trial was sufficient to support
the jury’s determination that defendant was guilty of assault with a deadly weapon.
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Given that evidence, the trial court’s reliance on defendant’s use of the golf club as a
factor to deny probation was not arbitrary or capricious, notwithstanding the jury’s
inconsistent verdict.
III. DISPOSITION
The judgment is affirmed.
/S/
RENNER, Acting P. J.
We concur:
/S/
KRAUSE, J.
/S/
MESIWALA, J.
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