Filed 7/23/13 P. v. Rivera CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E057463
v. (Super.Ct.No. RIF1202319)
DAVID ANTHONY RIVERA, OPINION
Defendant and Appellant.
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.
1
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.)1 He was also
charged with misdemeanor use of force against a peace officer. (§ 243, subd. (b);
count 2.)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.
1 All statutory citations refer to the Penal Code.
2 Count 2 was based on defendant spitting on one of the arresting officers.
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
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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.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.
3 The section 667.5, subdivision (c)(21) enhancement has no sentencing effect.
Rather, it makes residential burglary, which is a serious offense (§ 1192.7, subd. (c)(18)),
into a violent offense.
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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P.J.
We concur:
RICHLI
J.
KING
J.
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