People v. Rivera

IN THE SUPREME COURT OF
CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,
v.
CUITLAHUAC TAHUA RIVERA,
Defendant and Appellant.

S153881

Colusa County Superior Court
CR46819

May 23, 2019

Justice Liu authored the opinion of the court, in which Chief
Justice Cantil-Sakauye and Justices Chin, Corrigan, Cuéllar,
Kruger and Groban concurred.
 PEOPLE v. RIVERA
S153881

Opinion of the Court by Liu, J.

Defendant Cuitlahuac Tahua Rivera was convicted and
sentenced to death for the murder of Stephan Gene Gray, a
peace officer. (Pen. Code, §§ 187, 189.) The jury found true
special circumstance allegations that (1) the murder was
committed for the purpose of avoiding or preventing a lawful
arrest, or perfecting or attempting to perfect, an escape from
lawful custody; and (2) the murder involved the intentional
killing of a peace officer engaged in the course of his duties.
(Pen. Code, § 190.2, subd. (a)(5), (a)(7).) The jury found not true
the special circumstance allegation that the murder was
committed as a member of and to further the activities of a
criminal street gang. (Pen. Code, § 190.2, subd. (a)(22).) Rivera
was also convicted and sentenced for two counts of unlawful
possession of a firearm by a felon, two counts of shooting at an
occupied vehicle, and two stayed counts of assault with a
semiautomatic firearm. The jury found true all alleged
enhancements, including that the offenses of murder and
unlawful possession of a firearm were “committed for the benefit
of, at the direction of, or in association with any criminal street
gang” for the purposes of Penal Code section 186.22, subdivision
(b)(1)’s gang enhancement. This appeal is automatic.
We modify the judgment as to certain fines imposed by the
trial court, and we affirm the judgment as modified.

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Opinion of the Court by Liu, J.

I. FACTS
A. Guilt Phase
Trial began on April 13, 2007. The prosecution presented
evidence, including testimony by Jamilah Peterson, Rivera’s
girlfriend at the time, and other witnesses, pointing to Rivera as
the perpetrator of two shootings on April 11, 2004, and April 15,
2004. The second shooting resulted in the death of Officer Gray
of the Merced Police Department. Rivera conceded that he shot
and killed Officer Gray while fleeing from a parole search
resulting from a traffic stop. Rivera further admitted that he
was a member of the Merced Gangster Crips at the time of the
shooting. But he denied that the shooting was premeditated,
that the shooting was in furtherance of the gang, and that he
previously shot anyone else as the prosecution alleged.
1. Prosecution Evidence
a. Prior Encounters Between Rivera and Officer
Gray
The prosecution argued that Rivera and Officer Gray were
“very familiar” with one another and “knew each other on sight,”
based in part on Rivera’s membership in the Merced Gangster
Crips street gang and Officer Gray’s work with the Merced
Police Department’s gang unit, for which he was assigned to
monitor the Merced Gangster Crips. The two individuals had
several encounters before the events on April 11, 2004, and April
15, 2004. LaDonna Davis-Turner, who was acquainted with
Rivera through a friend, described an “altercation” that occurred
when Officer Gray attempted to arrest Rivera in 1999 or 2000.
Rivera was drunk, aggressive, and yelling profanities, and
Officer Gray had to slam Rivera to the ground to get him under
control.

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Peterson testified about another encounter during which
Rivera abandoned Peterson’s car on the side of the road to evade
Officer Gray, who had been following him. Peterson called
Officer Gray to attempt to get her car back. Officer Gray
informed her that he would only return the car if Rivera would
speak with him. Peterson subsequently contacted Rivera, but
Rivera refused to speak to Officer Gray. On yet another
occasion, Officer Gray came to Peterson’s house to speak with
Rivera. Peterson testified that although Officer Gray was
always professional, he would lecture Rivera about how he had
a daughter and family, and that it was a bad idea to hang around
“with the people he was hanging around with.” Officer Gray
warned Rivera that he was watching and if Rivera did anything,
Officer Gray would come get him. Rivera expressed to Peterson
that Officer Gray was always harassing him, and he resented
Officer Gray’s separate conversations with Peterson about how
being associated with Rivera would cause problems in her life.
At one point, Peterson suggested to Rivera that perhaps he,
rather than Officer Gray, was the source of the problem.
Peterson also testified that Rivera and his family told her that
Rivera and Officer Gray once had a physical altercation that
resulted in Rivera’s hospitalization.
b. Prior Uncharged Conduct
Adel Mohammed, who owned a liquor store in Merced that
Rivera visited on the night of April 15, 2004, testified that at
some point in 2000 or 2001, Rivera pointed a gun at him and his
friend Larry Gonzalez while Mohammed and Gonzalez were
sitting in a car outside of a different liquor store. Marlon
Bradley, who knew Rivera from childhood, testified to a
separate incident that occurred on September 30, 2000. Marlon
testified that his brother, Edward Bradley, attended a party at

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Opinion of the Court by Liu, J.

which a conflict arose between members of two rival gangs, the
Merced Gangster Crips and the Merced Bloods. After the party,
Marlon became aware that Rivera had arrived at his home with
an individual named Gerard Roberts. Marlon stepped outside
to join his brother and his friend Calvin Huffman. Marlon
testified that Roberts encouraged Rivera to “Hit them niggers.”
Rivera shot six to eight bullets from a revolver at the three men.
Marlon did not have a weapon and believed his brother and
Huffman were also unarmed. Marlon tried to run, fell,
continued running into the house after Rivera stopped shooting,
and told his mother to call the police. When the police arrived,
Marlon informed them that Rivera shot at him. Peterson
testified that she was not aware of the incident at the liquor
store involving Mohammed, but she did overhear Roberts refer
to having “taken care” of some members of the Merced Bloods
after a party in September 2000.
c. The Shooting of McIntire and Bianchi on April 11,
2004
Peterson testified that on April 11, 2004, she and Rivera
attended a family gathering at Applegate Park. Rivera left the
park in Peterson’s car, a Mazda Protegé, accompanied by
Rivera’s friend (also a member of the Merced Gangster Crips)
and Peterson’s stepfather. Rivera did not have a driver’s license,
registration, or insurance, and Peterson thought he would get in
trouble if he was pulled over, but she did not stop him.
Kimberly Bianchi testified that on the same day, she and
her boyfriend Aaron McIntire were driving near John Muir
Elementary School when they encountered three men in a teal
green vehicle at an intersection. Bianchi and McIntire both

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Opinion of the Court by Liu, J.

testified seeing the men looking at them in a threatening
manner and throwing up their hands “like there was a problem.”
Bianchi saw the driver display a handgun and fire three
shots at them. McIntire saw the driver leaning out the driver’s
window pointing a handgun at him. As McIntire sped away, he
heard three gunshots in quick succession. McIntire sustained a
gunshot wound to the ankle.
Bianchi and McIntire identified the teal Mazda Protegé
carrying Rivera as the vehicle from which the shots were fired.
Officer Frank Bazzar recovered three cartridge casings at the
scene of the shooting. Upon inspecting McIntire’s car, he noted
a bullet hole in the lower portion of the driver’s door and a hole
in the left side of the rear bumper, as well as a bullet on the back
floorboard behind the passenger seat.
Bianchi described the driver as Hispanic with a white tank
top and dark, “pouffy” hair. During a photo lineup of six men
several months after the incident, Bianchi was unable to pick
out the driver (Rivera). While testifying at the preliminary
hearing, Bianchi was unsure whether Rivera was the driver. At
trial, Bianchi identified Rivera as the driver, testifying that she
was now “pretty positive” it was him. McIntire also identified
Rivera at trial as the driver and shooter. McIntire averred that
he had been “positive” it was Rivera essentially since the day of
the shooting, but his testimony at the preliminary hearing was
unsure.
Officer Sean Greene, who worked with Officer Gray on the
Merced Police Department’s gang unit, and Officer Colin Smith,
who worked on the Merced Police Department’s special
operations unit, testified that Rivera’s name came up at a
meeting on April 13, 2004 as a possible person of interest in the

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McIntire shooting. Officer Smith explained that at the time,
Rivera was one of just a few Hispanic men associated with the
Merced Gangster Crips.
d. The Shooting of Officer Gray on April 15, 2004
Peterson testified to the incidents leading up to the
shooting on April 15, 2004. That day, after being at Peterson’s
mother’s apartment, Rivera asked Peterson to take him to “The
Hut.” Peterson described The Hut as “a place where people hang
out: They gamble, they do drugs, people sell drugs.” Peterson
drove Rivera and their two-year-old daughter south on Glen
Avenue in the direction of The Hut, intending to stop at a gas
station first. At a four-way stop, Peterson and Rivera saw and
immediately recognized Officer Gray, who was traveling east in
another vehicle. Officer Gray turned his car around and
followed Rivera and Peterson south. Peterson told Rivera that
there was nothing to worry about because she had a license and
insurance. Rivera responded, “Mother-fucker, why did — Why
is he always bothering me? Why is he harassing me? Why don’t
he just leave me alone?” Peterson again reassured Rivera that
they had nothing to worry about. Peterson did not know Rivera
had a gun, nor that as a parolee he could be pulled over and
searched at any time.
Using Peterson’s cell phone, Rivera called Peterson’s
father, Anton Martin. Rivera told Martin that Officer Gray was
following him and asked if Martin could come “to where we were
at.” Peterson noticed that Officer Gray turned on his vehicle’s
overhead lights, and she told Rivera that Officer Gray was
pulling them over. Rivera responded: “Why is this mother-
fucker . . . harassing me? Why won’t he leave me alone?”
Peterson pulled over to the side of Glen Avenue. During opening

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argument, the prosecution offered three reasons Officer Gray
may have stopped Rivera: (1) Rivera was a parolee; (2) when
Officer Gray tried to stop Rivera a few weeks earlier, Rivera
abandoned his girlfriend’s car and fled; and (3) Rivera was a
suspect in the shooting of McIntire and Bianchi four days
earlier.
As Peterson was pulling the car to the side of the road,
Rivera made a second phone call, this time to Clint Ward.
Peterson was not sure whether Ward was a member of a gang
but knew he was popular among members of the Merced
Gangster Crips because he had a car and would drive them to
The Hut and elsewhere. Rivera asked Ward to come get him.
After pulling over, Peterson began to step out of the car.
Officer Gray instructed her to go back inside. Peterson testified
that she initially left the vehicle without thinking, not because
she knew Rivera was planning to do something. Officer Gray
approached the car, walked around to the passenger side, and
asked Rivera to end his phone call. Rivera complied. Officer
Gray asked when Rivera had last seen his parole officer, and
Rivera replied: “On Monday.” Peterson heard someone over a
police dispatch radio state that Rivera was clear of any
outstanding warrants. Officer Gray asked Rivera to step out of
the vehicle to be searched. Rivera did so, but before Officer Gray
could search him, Rivera took off running. Officer Gray ran
after him. Peterson heard Officer Gray say, “I don’t know why
you’re running. You’re going to get caught anyway.” Peterson
saw Rivera holding his right hand underneath his left arm next
to his body as he ran and saw a gun flash. Peterson did not see
a gun nor hear gunshots, but she saw Officer Gray fall to the
ground.

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 PEOPLE v. RIVERA
Opinion of the Court by Liu, J.

Yolanda Cabanas lived on Glen Avenue and was visiting a
neighbor across the street on the evening of April 15, 2004.
Cabanas testified that from her vantage point in front of her
neighbor’s home, she noticed that an unmarked police car
stopped a blue-green car on Glen Avenue. She saw a black
woman get out of the car and heard an officer telling her to get
back into the car. She heard the officer speaking with another
man. Cabanas testified that she then saw a man, whom she
identified in court as Rivera, running away. She saw him look
over his left shoulder, pull out a gun from above his waistline,
and turn 90 to 180 degrees to the right toward the officer. The
officer did not have a weapon drawn. Cabanas testified that she
saw Rivera turn with the gun in his hand and point the gun at
Officer Gray. Cabanas heard a gunshot. Officer Gray kept
running, and a few seconds later, Cabanas heard a second
gunshot. Cabanas saw Officer Gray take three more steps
toward Rivera. She thought Officer Gray was nearly close
enough to “grab him” when he fell.
Natasha Velasquez was driving with her boyfriend on
Glen Avenue at the time these events took place. She testified
that she saw a man turn his upper torso to the right and point
a gun at a police officer who was chasing him. Velasquez heard
two gunshots and saw the officer fall to the ground. Michael
Clary and Donna Clary were at their home on the evening of
April 15, 2004 and testified that they saw an unmarked police
car stop a car outside their window, heard at least two gunshots,
saw an officer “down,” and observed a young black woman
standing near the car, speaking on a cell phone and crying.
Michael Clary heard the woman say, “ ‘I didn’t think he would
do it,’ ” and Donna Clary heard her say something like, “ ‘I can’t
believe that he shot him.’ ”

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Officer Greene testified that at approximately 7:15 p.m.,
he heard Officer Gray say over the radio that he was making a
traffic stop involving Rivera. When Officer Gray did not respond
to status update requests, and after gunshots were reported in
the area, Officer Greene was dispatched to Officer Gray’s
location. Officer Greene found Officer Gray lying facedown on
the sidewalk with a large gash on his forehead and a pool of
blood under his head and upper torso. He was breathing and
had a shallow pulse, but he did not speak. Upon removing his
clothing to find other injuries, Officer Greene and Officer Smith,
who arrived on the scene shortly thereafter, discovered a bullet
hole in his right chest.
An autopsy revealed that Officer Gray sustained two
gunshot wounds: a nonfatal wound consistent with a bullet
entering the back of his left arm approximately nine inches from
the top of his shoulder and traveling 5.5 inches in muscle and
soft tissue before exiting his arm; and a fatal wound consistent
with a bullet entering the right side of his chest, traveling
through a large artery and his lung, and striking his spinal
column, thereby severing the spinal cord. The bullet that caused
the first wound was never found, but the .45-caliber bullet
responsible for the second wound was recovered from Officer
Gray’s body, along with two expended shell casings recovered
from the scene of the shooting. Forensic evidence revealed that
the bullet and shell casings came from the same .45-caliber
semiautomic pistol as the bullet and three expended shell
casings recovered from the April 11, 2004 shooting. The gun
used to shoot Officer Gray was not recovered.
Sergeant Thomas Trinidad, Officer Gray’s supervisor in
the gang unit, testified that Officer Gray had been leading an
investigation into the Merced Gangster Crips’s drug trade, that

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the gang’s business boomed once Officer Gray was killed, and
that the investigation had to start all over again because “no one
[else] had the knowledge of the entire gang or their associates.”
Sergeant Trinidad also testified that killing a police officer could
“immensely” enhance a criminal street gang’s reputation, and
that the Merced Gangster Crips encouraged the killing of police
officers. He testified that Officer Gray’s death benefited and
energized the gang, and described a gang member’s statement
in a recorded phone conversation after the killing that
“somebody had to . . . smoke his ass,” referring to Officer Gray.
e. After the Shooting
Daniel Flores did not know Rivera personally but had seen
him around the neighborhood. He testified that on the night of
April 15, 2004, Rivera walked into Flores’s house, which was
three blocks from Glen Avenue. Rivera told Flores to stay put
and give him some clothes. Flores was not sure what was
happening but was scared and felt that there might be a problem
if he did not follow instructions. Flores gave Rivera a pair of
sweatpants, which Rivera put on over the clothes he was already
wearing. Flores’s roommate, Ricardo Munoz, arrived about five
minutes later. Munoz did not know Rivera either, but when
Rivera asked for clothes, Munoz removed the T-shirt he was
wearing and gave it to him, hoping Rivera would leave the
house. Rivera asked for a ride, but Munoz refused because he
believed Rivera had done something wrong. Munoz suspected
Rivera was hiding from the police because Rivera asked him
“where the cops were at.” When Rivera again asked for a ride,
Munoz refused once again, this time because there was a police
car blocking his vehicle. Neither Flores nor Munoz saw a
weapon on him.

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LaDonna Davis-Turner and her roommate, Dabreka
Thompson, testified that a few days after the shooting, people
familiar with Rivera pressured Davis-Turner and Thompson to
pick Rivera up and drive him to San Diego. They gave Davis-
Turner money to do so. Davis-Turner and Thompson eventually
agreed, drove Rivera to San Diego, and allowed him to stay at
Davis-Turner’s apartment for a few days. During this time,
Davis-Turner heard Rivera speak negatively about Officer Gray;
at one point, she heard Rivera say, “I hate Officer Gray. I hate
Officer Gray. Fuck Officer Gray.” After several days, Davis-
Turner and Thompson decided to contact the police. At some
point, Davis-Turner, Thompson, and Rivera traveled to Merced,
and the police instructed Davis-Turner and Thompson to meet
up with Rivera under the pretense that they would drive him
back to San Diego. Officers stopped the car and arrested Rivera.
2. Defense Evidence
Defense counsel conceded during closing argument that
Rivera shot and killed Officer Gray but argued that none of the
evidence presented by the prosecution demonstrated beyond a
reasonable doubt that the shooting was premeditated or gang-
related. Rather, the shooting was a “chance encounter.”
Defense counsel presented testimony from Professor Jose Lopez,
a gang expert, who concluded that the shooting “was not a gang-
related crime” because the events unfolded rapidly, leaving little
time for Rivera to deliberate on whether killing Officer Gray
would increase his gang’s reputation. Furthermore, killing a
police officer would not boost the reputation of his gang, but
instead would put both the killer and the gang in trouble by
inviting a crackdown from police. Accordingly, Professor Lopez
believed that Rivera was “just trying to escape.”

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Defense counsel also argued that Rivera was not involved
in the McIntire/Bianchi shooting, emphasizing that neither
Bianchi nor McIntire could identify Rivera in lineups and were
only now certain after having multiple conversations with law
enforcement officers and seeing news stories focused on Rivera.
The jury received its instructions, heard closing
arguments, and began its deliberations on May 2, 2007. The
following day, the jury found Rivera guilty of the first degree
murder of Officer Gray and found true the special circumstance
allegations that the murder was committed for the purpose of
avoiding or preventing a lawful arrest or perfecting or
attempting to perfect an escape from lawful custody, and that
the murder involved the intentional killing of a peace officer who
was engaged in the performance of his duties. The jury found
not true the special circumstance allegation that the murder
was carried out to further the activities of a criminal street gang.
The jury also convicted Rivera of two counts of unlawful
possession of a firearm by a felon, two counts of shooting at an
occupied vehicle, and two stayed counts of assault with a
semiautomatic firearm. The jury found true all enhancements,
including that the offenses of murder and unlawful possession
of a firearm were “committed for the benefit of, at the direction
of, or in association with any criminal street gang” for the
purposes of Penal Code section 186.22, subdivision (b)(1)’s gang
enhancement.
B. Penalty Phase
The penalty phase of trial began on May 9, 2007.
1. Prosecution Evidence
Rivera was previously convicted for unlawful possession of
a firearm (Pen. Code, § 12021, subd. (e)) and possession for sale

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of cocaine base (Health & Saf. Code, § 11351.5). He had been
adjudicated a ward of the juvenile court for two felony offenses:
making criminal threats and brandishing a deadly weapon on
one occasion and threatening school officials on another.
The prosecution referred the jury to its verdicts finding
Rivera guilty of firing three shots at McIntire and Bianchi, and
of murdering Officer Gray while he was performing his duties.
The court instructed the jury that it could consider certain
evidence if the jury found the allegations true beyond a
reasonable doubt. Specifically, the court cited evidence from the
guilt phase that Rivera previously had been convicted of
possession of a firearm by a prohibited person and possession
for sale of cocaine base, and uncharged conduct including two
counts of shooting at an occupied vehicle, two counts of assault
with a semiautomatic firearm, possession of a firearm by a felon,
making criminal threats in violation of Penal Code section 422,
threatening school employees in violation of Penal Code section
71, assault with a firearm upon Marlon Bradley in violation of
Penal Code section 248, and dissuading a witness and
brandishing a firearm upon Larry Gonzalez and Adel
Mohammed in violation of Penal Code sections 136.1 and 417.
Sergeant Barbara Carbonaro testified that on April 18,
2006, Rivera caused a disturbance at the jail by bailing water
out of the toilet, resulting in flooding in his cell and the hallway.
According to Sergeant Carbonaro, Rivera was angry because he
could not be rehoused in the jail’s general population. She
recalled that Rivera said his treatment was “unfair” and that he
was in jail “just because some pig got killed.” Sergeant
Carbonaro understood Rivera to be referring to Officer Gray.

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The prosecution presented testimony from Mark Dossetti,
retired chief of police for the City of Merced, that Officer Gray’s
killing was the first of any Merced police officer while on duty.
Chief Dossetti testified that Officer Gray was “loved and
respected by everybody,” and that his death emotionally
devastated the police department. Chief Dossetti and Sergeant
Christopher Goodwin said that Gray was a motivated,
professional officer and a good friend. Tony Gray, Officer Gray’s
brother, testified that they had been close and that his death
had caused Tony to attempt suicide twice and to take medication
for depression. Landess Gray, Officer Gray’s daughter who was
13 at the time of his death, testified that she thinks about him
all the time and has sought psychiatric counseling for the anger,
unhappiness, and confusion caused by her father’s death.
Lonather Gray, Officer Gray’s mother, testified that he was a
good child and that her life has been “horrible” since his death.
Michelle Gray, Officer Gray’s widow, testified that he was a good
husband and “the very best” father. The two were planning a
10-year wedding anniversary trip when he died.
2. Defense Evidence
Dr. Avak Howsepian, a medical doctor who interviewed
Rivera and spoke with his family and relatives, testified that
Rivera suffered from posttraumatic stress disorder, impulse
control disorder not otherwise specified, and psychotic disorder.
Dr. Howsepian attributed Rivera’s posttraumatic stress
disorder to his witnessing, at age three or four, an accident in
which a motorcyclist was killed. He opined that this trauma was
exacerbated by Rivera’s fatherless childhood and his mother’s
relationship with a man who beat her, causing Rivera to stay
home from school to protect her. Rivera also had to protect his
mother from his brother, Oswaldo, who suffered from mental

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health problems and physically attacked their mother on one
occasion. Dr. Howsepian testified that at the time of the
shooting Rivera suffered from a psychotic disorder that caused
his perceptions to become detached from reality and caused
Rivera to be deeply paranoid of Officer Gray.
A number of witnesses testified to Rivera’s good character.
Esperanza Yadira Rivera, Rivera’s niece, testified that Rivera
was a father figure to her who talked with her about school,
grades, and boys. Rivera continues to be a positive influence on
her by writing letters from jail and encouraging her to get good
grades and to stay out of trouble. Marcela Arroyo, Rivera’s
younger sister, testified that Rivera had a positive impact on her
while they were growing up and that he continues to encourage
her to stay in school and to be a role model to the younger
members of the family. Marcela Arroyo also testified that after
her grandfather was in a car accident, Rivera saved his life by
pulling him out of the car. Erika Rivera, Rivera’s mother,
testified that money was tight while the children were growing
up. Rivera’s father left when she was two months pregnant with
Rivera. After he had a child of his own, Rivera looked for his
own father but never found him. Erika Rivera also testified that
her son tried to be a father figure to his siblings and was “very
focused on his daughter,” with whom he remains in touch.
II. ISSUES REGARDING GUILT AND SPECIAL
CIRCUMSTANCES
A. Sufficiency of the Evidence for First Degree
Murder
Rivera contends that there was insufficient evidence to
support a conviction for first degree murder committed with
premeditation and deliberation. Upon a challenge to the

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sufficiency of evidence for a jury finding, we “ ‘ “ ‘review the
whole record in the light most favorable to the judgment below
to determine whether it discloses substantial evidence — that
is, evidence which is reasonable, credible, and of solid value —
such that a reasonable trier of fact could find the defendant
guilty beyond a reasonable doubt.’ ” ’ ” (People v. Brooks (2017)
3 Cal.5th 1, 57.) “The standard of review is the same in cases in
which the prosecution relies mainly on circumstantial evidence.”
(People v. Rodriguez (1999) 20 Cal.4th 1, 11; see People v.
Stanley (1995) 10 Cal.4th 764, 792–793.)
In People v. Anderson (1968) 70 Cal.2d 15, we observed
that “[t]he type of evidence which this court has found sufficient
to sustain a finding of premeditation and deliberation falls into
three basic categories”: (1) facts about planning activity “prior
to the actual killing which show[s] that the defendant was
engaged in activity directed toward, and explicable as intended
to result in, the killing”; (2) “facts about the defendant’s prior
relationship and/or conduct with the victim from which the jury
could reasonably infer a ‘motive’ to kill the victim”; and (3) “facts
about the nature of the killing from which the jury could infer
that the manner of killing was so particular and exacting that
the defendant must have intentionally killed according to a
‘preconceived design.’ ” (Id. at pp. 26–27, italics omitted.)
“Since Anderson, we have emphasized that its guidelines are
descriptive and neither normative nor exhaustive, and that
reviewing courts need not accord them any particular weight.”
(People v. Halvorsen (2007) 42 Cal.4th 379, 420.)
Rivera argues there was insufficient evidence of each of
the Anderson factors for the jury to convict him of first degree
murder; rather, the killing resulted from an unplanned
encounter initiated by Officer Gray’s stop. The Attorney

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General counters that there was at least some evidence of all
three factors and that although Rivera did not initiate the
encounter, he premeditated and deliberated on the killing once
he realized that Officer Gray was following his vehicle. We
conclude there was sufficient evidence to sustain the conviction.
The prosecutor presented evidence that Rivera and Officer
Gray “knew each other on sight” and that Rivera had an ongoing
relationship from which the jury could reasonably infer a motive
to kill. Officer Gray lectured Rivera about hanging around “with
the people he was hanging around with” and warned Rivera that
if Officer Gray “[saw] him doing anything, then, you know, he
would come get him.” Peterson testified that on the night of the
shooting, she stopped at a four-way stop sign, where both she
and Rivera recognized Officer Gray stopping around the same
time. Officer Gray turned his car around and followed Rivera
and Peterson south. After noticing they were being followed,
Rivera said, “Mother-fucker, why did — Why is he always
bothering me? Why is he harassing me? Why don’t he just leave
me alone?” Rivera then called Peterson’s father, Anton Martin,
and told him that Officer Gray was following him. Rivera made
a second phone call to Clint Ward, a popular contact among gang
members because he had a car and would offer them rides.
Peterson did not find it unusual for Rivera to call these two
individuals, but she could not explain why he would need a ride.
Peterson also recalled Rivera’s stepbrother, Salvador Arroyo,
telling her that Arroyo remembered hearing Rivera say he was
“going to do something to Gray because he was tired of [Gray]
harassing him,” but Arroyo testified that he did not remember
this conversation.
Based on this evidence, the jury could have reasonably
concluded that Rivera made the phone calls and held onto his

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gun when he exited the vehicle because he was planning to kill
Officer Gray. Furthermore, Rivera and Officer Gray’s history of
past contentious encounters as well as Rivera’s comments to
Peterson in the car provided evidence of a prior relationship and
conduct from which the jury could have inferred a motive to kill
Officer Gray. (See People v. Cruz (1980) 26 Cal.3d 233, 245
[“Defendant’s pent-up resentment toward his victim[]
establishes the prior relationship from which the jury
reasonably could infer a motive for the killing[].”].) Taken
together, the evidence is sufficient to support the jury’s finding
that Rivera committed a premeditated and deliberate murder.
B. Use of CALJIC No. 8.71
Rivera contends that the trial court gave a flawed version
of CALJIC No. 8.71 that suggested a juror was to give the
defendant the benefit of the doubt as to the degree of the offense
only if all jurors unanimously had a reasonable doubt as to the
degree. Rivera argues that the alleged instructional error
deprived him of the benefit of the judgment of individual jurors
and diminished the prosecutor’s burden of proof, thereby
violating his rights under state law and under the Fifth, Sixth,
Eighth, and Fourteenth Amendments to the U.S. Constitution.
The trial court gave the following instruction to the jury:
“If you are convinced beyond a reasonable doubt and
unanimously agree that the crime of murder has been
committed by the defendant, but you unanimously agree that
you have a reasonable doubt whether the murder was of the first
or of the second degree, you must give the defendant the benefit
of that doubt and return a verdict fixing the murder as of the
second degree.” The instruction tracks the version of CALJIC
No. 8.71 as of 2007, when the trial occurred. In 2011, we

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“conclude[d] the better practice is not to use [this version of
CALJIC No. 8.71], as the instruction[] carr[ies] at least some
potential for confusing jurors about the role of their individual
judgments in deciding between first and second degree
murder . . . .” (People v. Moore (2011) 51 Cal.4th 386, 411
(Moore).) Following our decision in Moore, CALJIC No. 8.71 was
amended to read: “If any juror is convinced beyond a reasonable
doubt that the crime of murder has been committed by a
defendant, but has a reasonable doubt whether the murder was
of the first or of the second degree, that juror must give
defendant the benefit of that doubt and find that the murder is
of the second degree.”
We review a claim of instructional error de novo. (People
v. Cole (2004) 33 Cal.4th 1158, 1210.) The challenged
instruction is considered “in the context of the instructions as a
whole and the trial record to determine whether there is a
reasonable likelihood the jury applied the instruction in an
impermissible manner.” (People v. Houston (2012) 54 Cal.4th
1186, 1229 (Houston).)
We conclude that the use of CALJIC No. 8.71 was “not
erroneous . . . when considered with the rest of the charge to the
jury.” (People v. Salazar (2016) 63 Cal.4th 214, 248 (Salazar).)
Here, the trial court also instructed the jury with CALJIC No.
8.74: “Before you may return a verdict in this case, you must
agree unanimously not only as to whether the defendant is
guilty or not guilty, but also, if you should find him guilty of an
unlawful killing, you must agree unanimously as to whether he
is guilty of murder of the first degree or murder of the second
degree.” CALJIC No. 8.74 explains that there must be
unanimous agreement for the jury to convict on first degree

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murder and clarifies that a jury could not convict Rivera of the
greater charge if there is no such agreement.
Furthermore, the trial court instructed the jury with
CALJIC No. 17.40: “The People and the defendant are entitled
to the individual opinion of each juror. Each of you must
consider the evidence for the purpose of reaching a verdict if you
can do so. Each of you must decide the case for yourself but
should do so only after discussing the evidence and instructions
with the other jurors. [¶] Do not hesitate to change an opinion
if you are convinced it is wrong. However, do not decide any
question in a particular way because a majority of the jurors or
any of them favor that decision. Do not decide any issue in this
case by the flip of a coin or by any other chance determination.”
Such an instruction emphasizes that jurors must each decide
guilt for themselves and mitigates the concern that jurors would
abandon their individual judgments regarding reasonable doubt
to first degree murder because of the instruction using former
CALJIC No. 8.71. (See People v. Gunder (2007) 151 Cal.App.4th
412, 424–425 [finding no reversible error where, in addition to
CALJIC No. 8.71, the trial court gave an instruction nearly
identical to CALJIC No. 17.40]; People v. Pescador (2004) 119
Cal.App.4th 252, 255–258 [finding no reversible error where the
trial court instructed with CALJIC Nos. 17.11 (stating that if
the jury found the defendant guilty, but reasonable doubt
existed as to whether the murder was of the first or second
degree, the jury must find the defendant guilty of murder in the
second degree), 17.40, and 8.50 (describing the difference
between murder and manslaughter) in addition to CALJIC No.
8.71].) These two instructions mitigated any possible confusion
from the use of CALJIC No. 8.71. (See People v. Buenrostro

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 PEOPLE v. RIVERA
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(2018) 6 Cal.5th 367, 428–430; People v. Gomez (2018) 6 Cal.5th
243, 302.)
There is also no indication in the record that the jury was
confused by the instruction. The jury submitted one note to the
judge requesting copies of several Penal Code sections or an
interpretation from the court about the statutory language of
one of the special circumstances and one of the enhancements
alleged. The trial court directed the jury to its earlier
instructions and indicated that if the jury needed further
explanation, the court could address that later. The jury did not
inquire further.
Based on the collective instructions given regarding the
requirement of unanimity and individual decisionmaking, and
given the lack of any indication that the jury was confused or
misled into returning the greater verdict of first degree murder
despite a juror having a reasonable doubt of such a finding, we
conclude that “[n]o logical reading” of CALJIC No. 8.71 would
compel a first degree murder verdict under the circumstances
present here. (Salazar, supra, 63 Cal.4th at p. 247.)

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C. Acquittal-first Instruction on First Degree
Murder
Rivera contends that the CALJIC No. 8.71 also violated
his rights under state law and under the Fifth, Sixth, Eighth,
and Fourteenth Amendments to the U.S. Constitution because
it was an acquittal-first instruction that required the jury to find
appellant not guilty of first degree murder before it could return
a verdict on second degree murder. Rivera concedes that we
have held that “when the jury returns a verdict on [a] lesser
included offense, it must also render a corresponding verdict of
acquittal on the greater offense.” (People v. Fields (1996) 13
Cal.4th 289, 310.) But he argues that we should reconsider this
holding because it precludes full jury consideration of lesser
included offenses in violation of his constitutional rights.
“Under the acquittal-first rule, a trial court may direct the
order in which jury verdicts are returned by requiring an
express acquittal on the charged crime before a verdict may be
returned on a lesser included offense.” (People v. Bacon (2010)
50 Cal.4th 1082, 1110.) We have observed that an acquittal-first
instruction must not prohibit the jury from considering or
deliberating on the lesser included offense before returning a
verdict on the greater offense. (People v. Kurtzman (1988) 46
Cal.3d 322, 330–331.)
The instruction with which Rivera takes issue here
(CALJIC No. 8.71) does not directly address the order-of-
deliberations issue and therefore does not provide occasion to
reconsider our prior holdings. CALJIC No. 8.71 simply states
that if the jury has reasonable doubt about whether the murder
was of the first or second degree, the jury “must give defendant
the benefit of that doubt and find that the murder is of the

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second degree.” Unlike other instructions that the trial court
did not employ in this case, CALJIC No. 8.71 does not instruct
the jury that it must acquit a defendant of a greater offense
before being able to find the defendant guilty of a lesser included
offense. (Compare CALJIC No. 8.75 [“The court cannot accept a
verdict of second degree murder unless the jury also
unanimously finds and returns a signed verdict form of not
guilty as to murder of the first degree.”].) If anything, the use of
CALJIC No. 8.71 reduced the likelihood that the jury failed to
consider the lesser included offense because the instruction
expressly reminded the jury it may convict the defendant of
second degree murder in lieu of first degree murder and
emphasized that any doubt should be resolved in the defendant’s
favor. CALJIC No. 8.71 therefore does not implicate the
acquittal-first rule nor pose any of the potential constitutional
concerns raised by such a rule.
D. Failure To Instruct That Subjective
Provocation May Reduce Premeditated First
Degree Murder to Second Degree Murder
Rivera contends that the trial court committed prejudicial
error when it failed to sua sponte instruct the jury that
subjective provocation can reduce premeditated murder to
second degree murder in this case because the evidence of
premeditation and deliberation was weak, and because
substantial evidence tended to show the shooting was in direct
response to appellant’s perception that the traffic stop and
search were part of a pattern of harassment.
Provocation may indeed reduce murder from first to
second degree. (People v. Thomas (1945) 25 Cal.2d 880, 903
[provocation might “be adequate to negative or raise a

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Opinion of the Court by Liu, J.

reasonable doubt as to the idea of premeditation or deliberation,
leaving the homicide as murder of the second degree”].) But an
instruction that provocation may be sufficient to raise
reasonable doubt about premeditation or deliberation, such as
CALJIC No. 8.73 or CALCRIM No. 522, is a pinpoint instruction
to which a defendant is entitled only upon request where
evidence supports the theory. (People v. Rogers (2006) 39
Cal.4th 826, 877–880.) The trial court is not required to give
such an instruction sua sponte. (Id. at pp. 878–879 [“Because
CALJIC No. 8.73 relates the evidence of provocation to the
specific legal issue of premeditation and deliberation, it is a
‘pinpoint instruction’ . . . and need not be given on the court’s
own motion.”].) In this case, Rivera did not make a request for
an instruction on provocation. The trial court did not err by
failing to so instruct the jury.
E. Instruction on Special Circumstance Allegation
of Murder To Prevent Arrest or Escape from
Lawful Custody
Rivera contends the trial court erred by instructing the
jury that the special circumstance under Penal Code section
190.2, subdivision (a)(5) could be found true upon a finding that
either (1) the murder was committed to avoid or prevent a lawful
arrest, or (2) the murder was committed to perfect or attempt to
perfect an escape from lawful custody. Rivera asserts that the
second theory is invalid because at the time of the murder, he
was neither under arrest nor charged with an offense, nor was
he in jail or prison. Rivera contends that the failure to
adequately instruct the jury upon matters relating to proof of
any element of the charge violates his Fifth, Sixth, and
Fourteenth Amendment rights under the federal Constitution,

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Opinion of the Court by Liu, J.

as well as his rights to trial by jury and due process under article
I, sections 15 and 16 of the California Constitution.
As noted, we review a claim of instructional error de novo.
(People v. Cole, supra, 33 Cal.4th at p. 1210.) We consider the
challenged instruction in the context of the instructions and
record as a whole to ascertain whether there is a reasonable
likelihood the jury impermissibly applied the instruction.
(Houston, supra, 54 Cal.4th at p. 1229.)
“The nature of th[e] harmless error analysis depends on
whether a jury has been presented with a legally invalid or a
factually invalid theory.” (People v. Perez (2005) 35 Cal.4th
1219, 1233 (Perez).) A legally inadequate theory involves a
“mistake about the law” that the jury would generally have no
reason to know, such as if “ ‘the action in question is protected
by the Constitution, is time barred, or fails to come within the
statutory definition of the crime.’ ” (People v. Guiton (1993) 4
Cal.4th 1116, 1125.) A factually inadequate theory involves a
mistake about a fact that the “jury is fully equipped to detect”
(id. at p. 1129) or a theory that “while legally correct, has no
application to the facts of the case” (Perez, at p. 1233). In cases
of factual inadequacy, the error is one of state law, and “[w]e will
affirm ‘unless a review of the entire record affirmatively
demonstrates a reasonable probability that the jury in fact
found the defendant guilty solely on the unsupported theory.’ ”
(Id. at p. 1233, quoting Guiton, at p. 1130.)
The special circumstance in Penal Code section 190.2,
subdivision (a)(5) provides: “The murder was committed for the
purpose of avoiding or preventing a lawful arrest, or perfecting
or attempting to perfect, an escape from lawful custody.” The
trial court accordingly instructed the jury with CALJIC No.

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 PEOPLE v. RIVERA
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8.81.5: “To find that the special circumstance referred to in
these instructions as murder to prevent arrest or to perfect an
escape is true, the following facts must be proved: [¶] First, the
murder was committed for the purpose of avoiding or preventing
a lawful arrest; or second, the murder was committed to perfect
or attempt to perfect an escape from lawful custody. . . .” There
is no mistake of law in the instruction; CALJIC No. 8.81.5 tracks
the language of the Penal Code. But, as the Attorney General
concedes, Rivera was not in custody at the time of the murder
and could not have been perfecting or attempting to perfect an
escape from lawful custody. We accept the Attorney General’s
concession that the alternate theory of murder for the purpose
of perfecting or attempting to perfect an escape from lawful
custody was a factually inadequate theory. We therefore must
assess whether it was reasonably probable that the jury found
Rivera guilty solely on the unsupported theory. (Perez, supra,
35 Cal.4th at p. 1233.)
The record as a whole does not suggest that the jury relied
on the unsupported theory. It is undisputed that Officer Gray
stopped the car and asked Rivera, who was on parole, to exit the
car. It is also undisputed that at that point, Rivera ran away
while possessing a gun that he later used during the pursuit.
During closing argument, the prosecutor argued that the jury
should find the special circumstance true because “the
defendant killed Officer Gray who was about to make a lawful
arrest.” The jury found that Rivera intentionally killed Officer
Gray while he was engaged in the performance of his duties or
in retaliation for the performance of his duties. The jury also
found Rivera guilty of being a felon in possession of a firearm
while running away from Officer Gray. The underlying facts
and convictions indicate there was ample evidence that the jury

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 PEOPLE v. RIVERA
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relied on the first theory — that the murder was committed for
the purpose of avoiding or preventing a lawful arrest — to find
true the special circumstance in rendering its verdict. It was
thus not reasonably probable, based on the record as a whole,
that the jury found Rivera guilty on the unsupported theory of
escaping from custody. We therefore affirm the jury’s special
circumstance finding.
F. Peace-officer-killing Special Finding Does Not
Apply to First Degree Murder
Rivera initially contended that the peace-officer-killing
enhancement must be stricken because Penal Code section 190,
subdivision (c) provides that the enhancement only applies to
second degree murder. The Attorney General concedes that this
enhancement only applies to second degree murder but argues
that we need not take action because the trial court already set
aside the special finding. In response, Rivera agrees and
withdraws the argument as moot. Our review of this claim is
therefore unnecessary.
G. Sufficiency of the Evidence for Gang-related
Enhancements for First Degree Murder and
Felon-in-possession-of-a-firearm Convictions
Rivera argues that the evidence is insufficient to sustain
the jury’s true finding that his convictions for murder and
unlawful possession of a firearm by a felon were committed for
the benefit of, at the direction of, or in association with a
criminal street gang for the purpose of a gang-related
enhancement. (Pen. Code, § 186.22, subd. (b)(1).)
“We review the sufficiency of the evidence to support an
enhancement using the same standard we apply to a conviction.”
(People v. Wilson (2008) 44 Cal.4th 758, 806.) “We presume

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every fact in support of the judgment the trier of fact could have
reasonably deduced from the evidence. [Citation.] If the
circumstances reasonably justify the trier of fact’s findings,
reversal of the judgment is not warranted simply because the
circumstances might also reasonably be reconciled with a
contrary finding.” (People v. Albillar (2010) 51 Cal.4th 47, 60
(Abillar).) The standard is the same whether the prosecution
relies on direct or circumstantial evidence. (People v. Valencia
(2008) 43 Cal.4th 268, 290 (Valencia).)
Penal Code section 186.22, subdivision (b)(1)’s gang
enhancement applies to “any person” convicted of a number of
enumerated felonies, including murder and unlawful possession
of a firearm by a felon, that were (1) “ ‘committed for the benefit
of, at the direction of, or in association with any criminal street
gang,’ ” and (2) “ ‘with the specific intent to promote, further, or
assist in any criminal conduct by gang members.’ ” (See People
v. Livingston (2012) 53 Cal.4th 1145, 1170–1171 [considering
sufficiency of evidence for each prong of Pen. Code § 186.22,
subd. (b)(1)].) “Not every crime committed by gang members is
related to a gang” for purposes of the enhancement (Albillar,
supra, 51 Cal.4th at p. 60), but the enhancement applies “when
a defendant has personally committed a gang-related felony
with the specific intent to aid members of that gang” (id. at
p. 68).
In this case, the prosecution presented evidence that
Rivera was an active member of the Merced Gangster Crips: He
participated in and had previously pled guilty to offenses related
to the gang’s drug trade; he bore gang tattoos that referred to
the Merced Gangster Crips; and he possessed firearms
associated with the gang. Rivera contacted several individuals
who were either members of the gang or “hung around” with

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known members before and after the murder, presumably to
facilitate his escape. (See People v. Abilez (2007) 41 Cal.4th 472,
508 [subsequent conduct may constitute circumstantial
evidence of intent at the time of the offense].)
The prosecution also presented evidence that Officer Gray
had been leading an investigation into the Merced Gangster
Crips’s drug trade, and that Rivera had personally interacted
with Officer Gray in the course of his investigation of a shooting
involving another gang member: During a parole check, Officer
Gray and another officer asked Rivera about the other gang
member and searched his home for any information about the
whereabouts of the other gang member. Officer Gray also
lectured Rivera about hanging around “with the people he was
hanging around with.” Finally, although the gun used to kill
Officer Gray was not recovered, forensic evidence of the bullet
recovered from Officer Gray’s body and shell casings found at
the scene indicated that they came from the same .45-caliber
semiautomatic firearm used in the gang-related McIntire
shooting three days earlier. A reasonable jury could infer from
this evidence that Rivera specifically intended the murder to
benefit and promote the gang.
H. Failure To Instruct Jury on All Elements of
Assault for Purposes of Offense of Assault with
a Semiautomatic Firearm
Rivera contends that the failure to instruct on the
elements of “assault” created a structural error requiring per se
reversal of the convictions of assault with a semiautomatic
firearm against McIntire and Bianchi in counts V and VI. The
trial court instructed the jury in the language of CALJIC No.
9.02.1: “Defendant is accused in Counts V and VI of having

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 PEOPLE v. RIVERA
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violated Section 245 subdivision (b) of the Penal Code, a crime.
Every person who commits an assault upon the person of
another with a semiautomatic firearm is guilty of a violation of
Penal Code Section 245[,] subdivision (b), a crime. [¶] In order
to prove this crime, each of the following elements must be
proved: [¶] First, a person was assaulted; [¶] Second, the
assault was committed with a semiautomatic firearm.” But the
trial court did not offer CALJIC No. 9.00 or a similar instruction
defining assault. The Attorney General concedes that the trial
court erred by not defining assault but argues that the error was
not structural and does not require reversal. We conclude the
error was harmless beyond a reasonable doubt.
“The trial court has a sua sponte duty to instruct the jury
on the essential elements of the charged offense.” (People v.
Merritt (2017) 2 Cal.5th 819, 824.) Failure to do so is a “very
serious constitutional error because it threatens the right to a
jury trial that both the United States and California
Constitutions guarantee. (U.S. Const., 6th Amend.; Cal. Const.,
art. I, § 16.) All criminal defendants have the right to ‘a jury
determination that the defendant is guilty of every element of
the crime with which he is charged, beyond a reasonable
doubt.’ ” (Ibid.) The error is reversible unless “it is clear beyond
a reasonable doubt that a rational jury would have rendered the
same verdict absent the error.” (Id. at p. 831.)
Here, the jury found, upon proper instruction, that Rivera
personally used a firearm in violation of Penal Code section
12022.5, subdivision (a)(1), which required a finding that Rivera
“intentionally displayed a firearm in a menacing manner,
intentionally fired it, or intentionally struck or hit a human
being with it” as to each victim. That finding alone may be
sufficient to establish assault. (People v. McMakin (1857) 8 Cal.

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Opinion of the Court by Liu, J.

547, 548 [observing that “presenting” a gun at person within its
range can constitute assault]; People v. Laya (1954) 123
Cal.App.2d 7, 16 [“The mere pointing of a gun at a victim
constitutes an assault with a deadly weapon, whether or not it
is fired at all.”].) But in this case, the jury also found, upon
proper instruction, that Rivera was guilty of shooting at an
occupied vehicle in violation of Penal Code section 246, which
requires “[a] person discharged a firearm at an occupied vehicle”
and “the discharge of the firearm was willful and malicious.”
These offenses encompass the elements of assault. Because the
trial court provided other instructions and the jury’s findings
necessarily addressed the elements of assault, we conclude the
trial court’s failure to give the instruction was harmless.
I. Allegations of Prosecutorial Misconduct During
Guilt-phase Closing Argument
Rivera contends that the prosecutor committed four
instances of misconduct during his closing argument:
(1) suggesting unethical conduct by the defense expert witness;
(2) arguing the existence of facts not admitted into evidence to
bolster the prosecution’s case; (3) vouching for witnesses,
thereby bolstering the testimony in support of the prosecution’s
case; and (4) appealing to passion and fear and, in doing so,
misstating the law on first degree premeditated murder. These
instances, Rivera argues, rendered the trial fundamentally
unfair and denied him his state and federal rights to due
process, effective assistance of counsel, and a fair trial.
“ ‘A prosecutor who uses deceptive or reprehensible
methods to persuade the jury commits misconduct, and such
actions require reversal under the federal Constitution when
they infect the trial with such “ ‘unfairness as to make the

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resulting conviction a denial of due process.’ ” ’ ” (People v.
Friend (2009) 47 Cal.4th 1, 29 (Friend), quoting Darden v.
Wainwright (1986) 477 U.S. 168, 181.) “ ‘Under state law, a
prosecutor who uses such methods commits misconduct even
when those actions do not result in a fundamentally unfair
trial.’ ” (Friend, at p. 29, quoting People v. Alfaro (2007) 41
Cal.4th 1277, 1328.) “When a claim of misconduct is based on
the prosecutor’s comments before the jury, ‘ “the question is
whether there is a reasonable likelihood that the jury construed
or applied any of the complained-of remarks in an objectionable
fashion.” ’ ” (Id. at p. 29, quoting People v. Smithey (1999) 20
Cal.4th 936, 960.) Prosecutorial misconduct can result in
reversal under state law if there was a “reasonable likelihood of
a more favorable verdict in the absence of the challenged
conduct” and under federal law if the misconduct was not
“harmless beyond a reasonable doubt.” (People v. Cook (2006)
39 Cal.4th 566, 608 (Cook).) Where the defendant does not
contemporaneously object to alleged misconduct, we generally
decline to review the claim on appeal unless a timely admonition
could not have cured the harm. (People v. Pensinger (1991) 52
Cal.3d 1210, 1251 (Pensinger); Friend, at p. 29 [“ ‘In order to
preserve a claim of misconduct, a defendant must make a timely
objection and request an admonition; only if an admonition
would not have cured the harm is the claim of misconduct
preserved for review.’ ”].)
Rivera objected only to the first three instances of alleged
misconduct, and he only did so outside the presence of the jury
after the closing argument was over. His claims are therefore
untimely and forfeited. (Pensinger, supra, 52 Cal.3d at p. 1251;
Friend, supra, 47 Cal.4th at p. 29.) But in any event, each

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instance of alleged misconduct either did not constitute
misconduct or was harmless.
1. Suggesting Unethical Conduct by the Defense Expert
Witness
Rivera argues the prosecutor improperly suggested that
defense expert Professor Lopez engaged in unethical conduct
when the prosecutor said to the jury: “We would suggest that
based on the flawed manner in which the defense expert . . .
conducted his research, you can completely disregard the
testimony that this murder was not committed for the benefit of
the street gang. Didn’t talk to any other than one member of
[the Merced Gangster Crips], spent two hours with the
defendant, didn’t talk to Sergeant Trinidad, didn’t talk to any
Merced police officers, get the lay of the land. That’s not
research. That’s not an investigation. That’s taking money and
trying to arrive at a conclusion that the money was paid to
secure.”
“Argument may not denigrate the integrity of opposing
counsel, but harsh and colorful attacks on the credibility of
opposing witnesses are permissible. [Citations.] Thus, counsel
is free to remind the jurors that a paid witness may accordingly
be biased and is also allowed to argue, from the evidence, that a
witness’s testimony is unbelievable, unsound, or even a patent
‘lie.’ ” (People v. Arias (1996) 13 Cal.4th 92, 162.) We have
previously concluded that discrediting a defense witness does
not constitute misconduct provided that the “prosecutor’s
argument merely focused on the evidentiary reasons why [an
expert’s opinions] could not be trusted.” (Ibid.; see also People
v. Blacksher (2011) 52 Cal.4th 769, 838 [concluding prosecutor’s
claim that a defense witness was not useful to defendant’s case

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“was permissible comment on the evidence”].) Here, the
prosecutor’s remarks insinuated that the witness was paid and
might be biased. The prosecutor also suggested that the defense
witness was incredible, relying on his cross-examination of the
witness that tended to suggest the witness’s research
methodology was lacking. Neither this approach nor the
prosecutor’s statement in closing argument constituted
misconduct.
2. Arguing the Existence of Facts Not Admitted into
Evidence
In his closing argument, the prosecutor said to the jurors:
“Members of the Jury, this case has gone faster than we
anticipated because frankly, and sadly, the facts just aren’t very
complex. Many of the witnesses we could have called would
have been repetitive, and Mr. Bacciarini and I are completely
satisfied that you understand what happened in both shootings.
There isn’t much more to add.” Rivera argues that the
prosecutor committed misconduct by referring to facts not
admitted into evidence. “ ‘[S]tatements of facts not in evidence
by the prosecuting attorney in his argument to the jury
constitute misconduct.’ ” (People v. Bolton (1979) 23 Cal.3d 208,
212.) The Attorney General concedes that the prosecutor’s
statement that he could have called other witnesses was
improper but argues that the error was harmless. We agree.
Whether considered under this state’s “reasonable
likelihood of a more favorable verdict” standard or the federal
“harmless beyond a reasonable doubt” standard, the error here
was harmless. (Cook, supra, 39 Cal.4th at p. 608.) It is true that
the prosecutor was apparently attempting to bolster the
credibility of the admitted evidence by suggesting other

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evidence existed to corroborate it. But the prosecutor’s
statement was an isolated instance in a closing statement that
otherwise focused on admitted evidence, which was quite strong
in favor of Rivera’s guilt. Furthermore, the jury was instructed
to determine the facts “from the evidence received in this trial
and not from any other source” and that “[s]tatements made by
the attorneys during the trial are not evidence.” For these
reasons, we conclude the error was harmless.
3. Vouching for Witnesses
Rivera also argues that that by referring to unadmitted
evidence and stating that he was “completely satisfied that you
[the jury] understand what happened in both shootings,” the
prosecutor committed misconduct by vouching for the witnesses.
“While a ‘prosecuting attorney has a wide range in which to
state his views as to what the evidence shows and the
conclusions to be drawn therefrom’ [citation], and in his
argument to the jury the prosecutor may comment upon the
credibility of witnesses ‘in the light of all the evidence in the
case’ [citations], ‘[i]t is misconduct for a prosecuting attorney to
express his personal belief as to the reliability of a witness.’ ”
(People v. Perez (1962) 58 Cal.2d 229, 245.) “Impermissible
‘vouching’ may occur where the prosecutor places the prestige of
the government behind a witness through personal assurances
of the witness’s veracity or suggests that information not
presented to the jury supports the witness’s testimony.” (People
v. Fierro (1991) 1 Cal.4th 173, 211.) “Such an expression of
personal opinion is misconduct whether the prosecutor is
seeking thereby to bolster testimony which was in support of the
People’s case [citations], or whether the People’s representative
is attempting to discredit the credibility or reliability of

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witnesses testifying in support of the defendant.” (Perez, 58
Cal.2d at p. 246.)
The prosecutor did not refer to any particular witness nor
make assurances of the truth of their testimony. His brief
allusion to facts not in evidence did not have the prejudicial
effect of bolstering the testimony of any particular witness. The
prosecutor’s statement therefore did not constitute
impermissible vouching of a witness.
4. Appealing to Passion and Fear and Misstating the
Law on First Degree Premeditated Murder
Rivera argues that the prosecutor improperly appealed to
passion and fear by making several statements during closing
argument. First, the prosecutor said to the jury: “On the
homefront, one of the most important acts of citizenship that
any person can be asked to perform is now being performed by
you in your service as jurors; and more so, in a murder trial in
which the penalty being sought is death.” In rebuttal, the
prosecutor urged the jury to “bring a verdict into this courtroom
that honors its more than 150-year tradition of justice.” Second,
the prosecutor argued: “[G]angsters don’t deserve second-
degree murder because they already come from a murder
mindset. Murder is already part of their culture. It was already
part of the defendant’s lifestyle, part of who he is.” On rebuttal,
the prosecutor also said: “Gang members are ready to kill. It’s
part of their culture; it’s what they do. They commit acts of
violence.” Finally, the prosecutor repeated the initial
statement: “Gang members, like this prosecutor said, don’t get
second-degree murder, they don’t deserve second-degree
murder.” Rivera argues these statements both appealed to the
jurors’ passions by bringing the potential death penalty to bear

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during the guilt phase and by encouraging the jury to allow a
fear of gangs to influence their evaluation of the case. He also
contends the prosecutor’s comments misstated the law
regarding premeditated first degree murder.
“A prosecutor is allowed to make vigorous arguments and
may even use such epithets as are warranted by the evidence,
as long as these arguments are not inflammatory and
principally aimed at arousing the passion or prejudice of the
jury.” (Pensinger, supra, 52 Cal.3d at p. 1251.) “[I]t is improper
for a prosecutor to appeal to the passion or prejudice of the jury.”
(People v. Cornwell (2005) 37 Cal.4th 50, 92 (Cornwell).) “[I]t is
misconduct for a prosecutor, during argument, to misstate the
law [citation], or to invite or encourage the jury to do what the
law prohibits.” (People v. Whalen (2013) 56 Cal.4th 1, 77.)
Even assuming Rivera did not forfeit his claim concerning
the statements about jury service by failing to timely object, we
conclude that these statements do not constitute misconduct.
The prosecutor’s statement merely reminded the jurors about
the importance of the civic duty in which they were engaged. It
did not ask the jury to act on the basis of fear or to decide the
case in a particular way in light of that duty. (See Cornwell,
supra, 37 Cal.4th at pp. 92–93 [finding no prosecutorial
misconduct for prosecutor’s appeal to “ ‘the duty’ ” that is
“ ‘essential to our society’ ” where “the prosecutor’s argument
did not urge the members of the jury to act on the basis of their
fear of chaos and crime in the community, but to act with an
understanding of the importance of law in the abstract”].)
The prosecutor’s statements that gang members do not
“deserve second-degree murder” and “don’t get second-degree
murder” are more troubling. Being affiliated with a gang does

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not make a defendant deserving of conviction for first degree
murder. The mental state required for first degree murder “is
uniquely subjective and personal. It requires more than a
showing of intent to kill; the killer must act deliberately,
carefully weighing the considerations for and against a choice to
kill before he or she completes the acts that caused the death.”
(People v. Chiu (2014) 59 Cal.4th 155, 166.) To suggest that a
gang member deserves to be convicted of first degree murder or
may be convicted of only first degree murder rather than second
degree murder is a misstatement of the law.
But Rivera did not object to the prosecutor’s statements
implying that gang members deserve to be convicted of first
degree murder. Rivera therefore forfeited this claim. (See
Pensinger, supra, 52 Cal.3d at p. 1251; Friend, supra, 47 Cal.4th
at p. 29.)
J. Review of Sealed Transcripts of Trial Court’s
Pitchess Hearings and Withholding of Relevant
Documents
Rivera requests that we independently review the sealed
record of the trial court discovery rulings pursuant to Pitchess v.
Superior Court (1974) 11 Cal.3d 531 in order to determine
whether the trial court’s in camera review process complied with
the law. We have done so and conclude that the trial court did
not abuse its discretion.
Before trial, Rivera filed a Pitchess motion seeking to
discover documents from the prosecution concerning Officer
Gray — in particular, evidence or complaints of “excessive force,
aggressive conduct, unnecessary or excessive violence,
unnecessary force, planting of evidence, false arrest, false
statements in reports, false claims of probable cause, detaining

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people without legal cause, interfering in the domestic
relationships of citizens, or any other evidence of or complaints
of dishonesty . . . .” Rivera later filed an amended motion
containing appended police reports. The trial court found good
cause to conduct an in camera review of Officer Gray’s personnel
file. After conducting an in camera review on June 6, 2005, the
trial court granted the motion in part and denied it in part. The
City of Merced moved for reconsideration and requested that the
court reopen the in camera review to allow Merced to place
additional information on the record and to clarify certain issues
that arose during the hearing. On August 30, 2005, the trial
court held a second in camera hearing. The trial court concluded
that some of the information contained in the materials was
discoverable and some was not, and ordered the discoverable
information disclosed to the defense.
“When a defendant shows good cause for the discovery of
information in an officer’s personnel records, the trial court
must examine the records in camera to determine if any
information should be disclosed. [Citation.] The court may not
disclose complaints over five years old, conclusions drawn
during an investigation, or facts so remote or irrelevant that
their disclosure would be of little benefit. [Citations.] Pitchess
rulings are reviewed for abuse of discretion.” (People v. Winbush
(2017) 2 Cal.5th 402, 424.)
In this case, the record includes sealed transcripts of both
in camera hearings and an envelope with sealed exhibits
pertaining to Rivera’s motion. After reviewing these documents,
we conclude that there was no abuse of discretion. The
custodian of records brought to the trial court “all ‘potentially
relevant’ documents to permit the trial court to examine them
for itself”; was placed under oath at the in camera hearing; and

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stated for the record “what other documents (or category of
documents) not presented to the court were included in the
complete personnel record, and why those were deemed
irrelevant or otherwise nonresponsive to the defendant’s
Pitchess motion.” (People v. Mooc (2001) 26 Cal.4th 1216, 1228–
1229.) The trial court examined the information, made a record
of and properly released to the defendant information it deemed
discoverable, and otherwise complied with applicable law. (Id.
at pp. 1225–1227, 1229–1230.)
K. Admission of Evidence of Uncharged Misconduct
Rivera contends that the trial court prejudicially erred
when it allowed the prosecutor to admit testimony about several
incidents of uncharged misconduct involving Rivera’s use of a
firearm against Adel Mohammed, Larry Gonzalez, Marlon
Bradley, and Edward Bradley. Specifically, Rivera contends
that although the evidence of uncharged misconduct was
admitted as evidence of predicate offenses involving the Merced
Gangster Crips gang, the jury was permitted to consider it for
the purpose of showing premeditation, deliberation, intent, and
gang-related motive with respect to the charged crimes
involving McIntire and Office Gray.
During opening argument, the prosecutor mentioned two
prior instances involving Rivera’s alleged relationship with his
“gang and guns”: one in 2000 in which Rivera, who was
accompanied by several other people, pulled a gun on two young
men who were sitting in a car outside a liquor store, and another
in 2001 in which Rivera fired between six and eight shots on a
group of men in a residential neighborhood in Merced.
Mohammed, Marlon Bradley, and Jamilah Peterson were all
permitted to testify about these events. In closing, the

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prosecutor alluded to the Merced shooting to argue that Rivera
premeditated the murder of Officer Gray: “Remember the jury
instruction on premeditation says it will vary with each
individual. How long do you think it took this individual to
decide to kill? How long do you think it took for him to decide to
fire three shots at Aaron McIntire and Kimberly Bianchi four
days before? How long do you think it took for him to fire six
shots at Marlon Bradley three-and-a-half years before that?”
The prosecutor also argued: “[Rivera] made the decisions that
took him a little further and a little further . . . . We’re not even
talking one shot, Ladies and Gentlemen; we’re talking two
shots. You got to pull that trigger twice. He had to pull it three
times with Bianchi and McIntire, like he had to pull it six times
with Marlon Bradley.”
“Evidence that a defendant has committed crimes other
than those currently charged is not admissible to prove that the
defendant is a person of bad character or has a criminal
disposition; but evidence of uncharged crimes is admissible to
prove, among other things, the identity of the perpetrator of the
charged crimes, the existence of a common design or plan, or the
intent with which the perpetrator acted in the commission of the
charged crimes. [Citation.] Evidence of uncharged crimes is
admissible to prove identity, common design or plan, or intent
only if the charged and uncharged crimes are sufficiently similar
to support a rational inference of identity, common design or
plan, or intent.” (People v. Kipp (1998) 18 Cal.4th 349, 369.) “On
appeal, the trial court’s determination of this issue, being
essentially a determination of relevance, is reviewed for abuse
of discretion.” (Ibid.)
The Attorney General argues that evidence of the two
instances of uncharged misconduct were relevant to prove

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Rivera’s state of mind at the time he committed the charged
offenses, including premeditation, deliberation, and a gang-
related motive. “In order to be admissible to prove intent, the
uncharged misconduct must be sufficiently similar to support
the inference that the defendant ‘ “probably harbor[ed] the same
intent in each instance.” ’ ” (People v. Ewoldt (1994) 7 Cal.4th
380, 402, quoting People v. Robbins (1988) 45 Cal.3d 867, 879.)
Only “[t]he least degree of similarity (between the uncharged act
and the charged offense) is required in order to prove intent.”
(Ewoldt, at p. 402.)
Here, Marlon Bradley testified about a 2001 shooting after
a conflict between two rival gangs at a party. After being
encouraged by a fellow member of the Merced Gangster Crips to
“[h]it them niggers,” Rivera shot six to eight bullets from a
revolver in the direction of Bradley and two other men, but
missed. This incident meets the standard of admissibility to
show intent, premeditation, and gang-related motive with
respect to the shooting of Aaron McIntire, in which Rivera
allegedly shot a gun while accompanied by a fellow member of
the Merced Gangster Crips. The incident in which Rivera,
accompanied by a couple of other people, brandished a firearm
at Mohammed and Gonzalez as they sat in a car is similarly
probative of Rivera’s intent with respect to shooting at McIntire,
who was also sitting in a car.
But the Attorney General does not explain what made
these uncharged offenses sufficiently similar to the shooting of
Officer Gray, which occurred four years later and involved facts
and circumstances different from both a nonlethal gang-directed
shooting and an incident involving pointing a firearm at two
men sitting in a car. We are therefore skeptical that the
uncharged offenses were admissible for the purpose of proving

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premeditation, deliberation, or a gang-related motive with
respect to the shooting of Officer Gray.
Nevertheless, Rivera did not object to the prosecutor’s use
of the evidence of uncharged misconduct for the purpose of
supporting a theory of premeditation or deliberation with
respect to the killing of Officer Gray, nor did he object to the use
of CALJIC No. 2.50, which instructed the jury that the evidence
of uncharged misconduct could be used to show intent or gang-
related motive. Any objection to the use of the evidence for these
purposes is therefore forfeited. (Pensinger, supra, 52 Cal.3d at
p. 1251; Friend, supra, 47 Cal.4th at p. 29.)
L. Cumulative Effect of Guilt Phase Errors
Rivera contends that his convictions should be reversed
because the cumulative prejudice of the alleged errors during
the guilt phase violated his due process right to a fundamentally
fair and reliable trial under the California and federal
Constitutions. We have found or assumed several errors: the
trial court’s instruction on a factually inadequate theory of
liability for the special circumstance allegation of murder to
prevent arrest or escape from lawful custody; the trial court’s
failure to instruct on the elements of assault; the prosecutor’s
reference to evidence not admitted into the record as
corroborating evidence; the prosecutor’s misstatement of the law
about a gang member’s eligibility for second degree murder; and
the trial court’s admission of uncharged misconduct to support
the prosecution’s argument that Rivera premeditated the
murder of Officer Gray. As discussed, each of the errors was
individually harmless. Because they largely relate to distinct
offenses and unrelated evidentiary issues, we conclude that they
do not cumulatively amount to prejudice requiring reversal of

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Rivera’s conviction. (See, e.g., Moore, supra, 51 Cal.4th at
pp. 417–418 [“The three errors we have concluded or assumed
occurred below, each individually harmless, related to distinct
procedural or evidentiary issues not closely related to one
another. We see no possibility their individual effects, if any,
cumulatively resulted in prejudice to defendant.”].)
III. PENALTY PHASE AND SENTENCING ISSUES
A. Admission of Juvenile Adjudications
Rivera contends the trial court erred at the penalty phase
by admitting, over his objection, evidence of his juvenile
adjudications and his commitment as a ward of the juvenile
court at ages 15 and 16.
“Section 190.3, factor (b), permits the penalty phase jury
to consider ‘[t]he presence or absence of criminal activity by the
defendant which involved the use or attempted use of force or
violence or the express or implied threat to use force or
violence.’ ” (People v. Combs (2004) 34 Cal.4th 821, 859 (Combs),
quoting Pen. Code § 190.3, factor (b).) “ ‘ “Evidence of prior
criminal behavior is relevant under section 190.3, factor (b) if it
shows ‘conduct that demonstrates the commission of an actual
crime, specifically, the violation of a penal statute. . . .’ ” ’ ”
(Combs, at p. 859, quoting People v. Hughes (2002) 27 Cal.4th
287, 382.) Accordingly, “although the fact of a juvenile
adjudication is inadmissible as a factor in aggravation” because
juvenile adjudications “are not ‘prior felony convictions’ within
the meaning of section 190.3, factor (c),” such adjudications may
be admissible under factor (b), which “involves evidence of
violent conduct other than the capital crimes, regardless of
when the misconduct occurred or whether it led to a criminal
conviction.” (People v. Taylor (2010) 48 Cal.4th 574, 652–653

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(Taylor).) The trial court therefore did not err by admitting Jeff
Kettering’s testimony referring to Rivera’s juvenile adjudication
involving criminal threats and brandishing a deadly weapon as
evidence of “criminal activity” under section 190.3, factor (b).
Rivera argues that the high court’s decisions in Roper v.
Simmons (2005) 543 U.S. 551, Graham v. Florida (2010) 560
U.S. 48, Miller v. Alabama (2012) 567 U.S. 460, and Hall v.
Florida (2014) 572 U.S. 701 [134 S.Ct. 1986] operate to preclude
admission of his juvenile criminal activity and that the jury’s
consideration of such evidence is barred by the Eighth and
Fourteenth Amendments.
“It is well established the federal Constitution does not bar
consideration of unadjudicated criminal offenses.” (People v.
Bramit (2009) 46 Cal.4th 1221, 1239.) “Roper does not compel
exclusion of such evidence.” (Taylor, supra, 48 Cal.4th at
p. 653.) “That case holds that the execution of individuals who
were under 18 years of age at the time of their capital crimes is
prohibited by the Eighth and Fourteenth Amendments. It says
nothing about the propriety of permitting a capital jury, trying
an adult, to consider evidence of violent offenses committed
when the defendant was a juvenile. An Eighth Amendment
analysis hinges upon whether there is a national consensus in
this country against a particular punishment. [Citations.]
Defendant’s challenge here is to the admissibility of evidence,
not the imposition of punishment.” (Bramit, at p. 1186.) We
have also observed that the same reasoning applies to Miller v.
Alabama and Graham v. Florida. We concluded these cases “do
not address the question of whether evidence of juvenile
misconduct can be considered on the question of what
punishment a defendant may receive for crimes committed as
an adult.” (People v. Rices (2017) 4 Cal.5th 49, 87.) We also

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observed that the high court’s more recent decision in Hall v.
Florida was “even further afield from this question” because the
U.S. Supreme Court “never suggested that evidence of juvenile
misconduct may not be admitted in deciding the proper
punishment for crimes an adult commits.” (Rices, at p. 87.) The
jury’s consideration of Kettering’s testimony concerning
Rivera’s juvenile criminal activity was permissible.
B. Admission of Rivera’s Postcrime Statements and
Conduct
During the penalty phase, Sergeant Carbonaro testified
about an incident on April 18, 2006 in which Rivera allegedly
flooded his cell and referred to Officer Gray. Sergeant
Carbonaro testified that Rivera “was causing a disturbance. He
was flooding out his cell. . . . He was angry because he could not
be rehoused. He wanted to be rehoused down in general
population. . . . He made a statement that he didn’t — he
thought that this was unfair. Everybody else gets a chance and
that just because some pig got killed he was there.” Sergeant
Carbonaro explained that she understood Rivera to be referring
to Officer Gray. At the time, Rivera objected that there was a
videotape of the incident without any indication Rivera ever
made those statements; that the testimony was more prejudicial
than probative; and that the prosecution may not present any
evidence that Rivera was allegedly not remorseful unless Rivera
presents evidence that he is remorseful for his crimes.
Acknowledging that the testimony could not be admitted to
show lack of remorse except in rebuttal, the trial court allowed
the testimony under Penal Code section 190.3, factor (a) as
“[c]ircumstances of the crime showing his attitude towards the
victim.” Rivera contends that the trial court committed

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prejudicial error by allowing the testimony as an aggravating
factor.
“Overt remorselessness [at the immediate scene of the
crime] is a statutory sentencing factor . . . because factor (a) of
[Penal Code] section 190.3 allows the sentencer to evaluate all
aggravating and mitigating aspects of the capital crime itself.
Moreover, there is nothing inherent in the issue of remorse
which makes it mitigating only. The defendant’s overt
indifference or callousness toward his misdeed bears
significantly on the moral decision whether a greater
punishment, rather than a lesser, should be imposed. [Citation.]
[¶] On the other hand, postcrime evidence of remorselessness
does not fit within any statutory sentencing factor, and thus
should not be urged as aggravating.” (People v. Gonzalez (1990)
51 Cal.3d 1179, 1232, italics omitted.)
Assuming without deciding that the admission of Rivera’s
alleged statement about Officer Gray was error, we see no
reasonable possibility any error affected the jury’s death verdict.
(Chapman, supra, 386 U.S. at p. 24; People v. Nelson (2011) 51
Cal. 4th 198, 218, fn. 15.) The jury heard other properly
admitted evidence of Rivera’s disparaging statements about
Officer Gray, such as, “I hate Officer Gray. I hate Officer Gray.
Fuck Officer Gray.” The alleged comment labeling Officer Gray
a “pig” therefore was unlikely to have affected the verdict.
Furthermore, the prosecution presented other aggravating
evidence in support of a death verdict, including the
circumstances of the crime and Rivera’s attempts to evade
capture, Rivera’s prior felony convictions, and his prior
instances of violent criminal conduct, including the shooting
incident involving Bianchi and McIntire. Nothing about the
jury’s request for a read-back of Sergeant Carbonaro’s testimony

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(along with other testimony from prosecution and defense
witnesses during its deliberations) suggests that this testimony
tipped the scales in favor of death. We therefore conclude that
any error in admitting the testimony was harmless beyond a
reasonable doubt.
Rivera also contends that the trial court abused its
discretion under Evidence Code section 352 by admitting
Sergeant Carbonaro’s testimony. Rivera initially argued that
the evidence was more prejudicial than probative because a
videotape of the incident did not indicate that Rivera said what
the statements alleged. Although the trial court ruled on the
factor (a) relevance argument, it did not state on the record that
it had weighed potential prejudice against probative value
under section 352. But Rivera’s memorandum of points and
authorities in support of his motion to exclude the evidence
focused only on the factor (a) question and whether evidence
showing lack of remorse could be admitted. It was therefore
understandable that the trial court’s comments focused on the
issue.
“[A] court need not expressly weigh prejudice against
probative value or even expressly state that it has done so, if the
record as a whole shows the court was aware of and performed
its balancing functions under Evidence Code section 352.”
(People v. Taylor (2001) 26 Cal.4th 1155, 1169.) Although the
court’s final orders did not acknowledge section 352, the record
suggests that the trial court was aware of its responsibilities and
performed its balancing functions. The trial court heard both
counsel’s arguments before and during the hearing held
pursuant to Evidence Code section 402. At that hearing, the
trial court provided a detailed explanation of why it was
allowing the evidence. Furthermore, evidence of Rivera’s

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statements regarding his attitude toward Officer Gray was
probative. (See People v. Payton (1992) 3 Cal.4th 1050, 1063
[“Evidence of statements from defendant’s own mouth
demonstrating his attitude toward his victims was highly
probative.”].) The trial court did not abuse its discretion under
Evidence Code section 352 by admitting this evidence.
Finally, Rivera argues that, aside from Rivera’s alleged
“pig” statement, Sergeant Carbonaro’s accompanying testimony
about Rivera causing a disturbance by flooding his cell with
water from the toilet and subsequently being removed from his
cell was irrelevant and unduly prejudicial. He contends that the
incident did not constitute “criminal activity” to be admitted as
an aggravating factor under factor (b).
This argument fails. There is no indication that the
prosecutor argued that the flooding incident itself should be
considered an aggravating factor or that the jury improperly
considered the incident as evidence in aggravation. Any error
in admitting the evidence was therefore harmless.
C. Jury’s Use of Allegedly Invalid Sentencing Factor
Rivera argues that his death judgment must be reversed
and the case remanded for a new penalty trial because of the
court’s use of a jury instruction containing an invalid theory
concerning the special circumstance allegation of murder to
prevent arrest or escape from lawful custody. (See Part II.E,
ante.) Although Rivera does not challenge the validity of the
jury’s true finding concerning a separate special circumstance
eligibility factor — murder of a peace officer engaged in the
performance of his duties — Rivera argues that reversal is
required because the jury should not have given any

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aggravating weight to the facts and circumstances that the
murder was to prevent arrest or escape from lawful custody.
“An invalidated sentencing factor (whether an eligibility
factor or not) will render the sentence unconstitutional by
reason of its adding an improper element to the aggravation
scale in the weighing process unless one of the other sentencing
factors enables the sentencer to give aggravating weight to the
same facts and circumstances.” (Brown v. Sanders (2006) 546
U.S. 212, 220 (Brown); see People v. Debose (2014) 59 Cal.4th
177, 196.) Sentencing factor (a) permits jurors to consider “[t]he
circumstances of the crime of which the defendant was convicted
in the present proceeding and the existence of any special
circumstances found to be true . . . .” (Pen. Code § 190.3, subd.
(a).)
The facts and circumstances supporting the jury’s true
finding that the murder was committed to prevent arrest or
escape from lawful custody were properly available for
consideration as “circumstances of the crime of which the
defendant was convicted.” (Pen. Code, § 190.3, subd. (a).) The
jury was further entitled to consider these facts and
circumstances in support of the special circumstance allegation
that the murder involved the intentional killing of a peace officer
engaged in the performance of his duties. (See id., § 190.2, subd.
(a)(7).) There was therefore no constitutional violation in
permitting the jury to give aggravating weight to these facts and
circumstances. (See Brown, supra, 546 U.S. at p. 222–224;
People v. Maciel (2013) 57 Cal.4th 482, 521 [concluding that no
reversal was required because even if there were insufficient
evidence to support the jury’s true finding of the special
circumstance of multiple murder, the jury would have heard the
same evidence in support of the prosecution’s alternate theory].)

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D. Refusal To Instruct on Lingering Doubt
During the penalty phase trial, Rivera requested the
following instruction: “A juror who voted for conviction at the
guilt phase may still have a lingering or residual doubt as to
whether the defendant premeditated and deliberated the
murder of Officer Gray. Such a lingering or residual doubt,
although not sufficient to leave you with a reasonable doubt at
the guilt phase, may still be considered as a mitigating factor at
the penalty phase. Each individual juror may determine
whether any lingering or residual doubt is a mitigating factor
and may assign it whatever weight the juror feels is
appropriate.” The trial court refused to give the requested
instruction but indicated that it would permit Rivera to argue
lingering doubt to the jury. While acknowledging that we have
previously held otherwise, Rivera argues that he was entitled to
an instruction on lingering doubt and that the trial court’s
refusal to provide the instruction violated Rivera’s
constitutional rights and requires reversal of the death
judgment. We conclude that there was no error.
“Although the jurors may consider lingering doubt in
reaching a penalty determination, there is no requirement
under state or federal law that the court specifically instruct
that they may do so.” (People v. Boyce (2014) 59 Cal.4th 672,
708.) The trial court instructed the jury with CALJIC No. 8.85,
factor (k), which “tells the jury that it may consider ‘[a]ny other
circumstance which extenuates the gravity of the crime even
though it is not a legal excuse for the crime and any sympathetic
or other aspect of the defendant’s character or record that the
defendant offers as a basis for a sentence less than death,
whether or not related to the offense for which he is on trial.’ . . .
That instruction sufficiently encompasses the concept of

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lingering doubt.” (Boyce, at pp. 708–709, italics omitted.) The
trial court was not required to provide any further instruction
on lingering doubt.
E. Death Penalty Statute as Unconstitutional and a
Violation of International Law
Rivera argues that many features of California’s death
penalty statute violate the U.S. Constitution and international
law. As Rivera acknowledges, we have repeatedly rejected
similar claims, and Rivera provides no persuasive reason to
revisit the following precedent:
“[T]he California death penalty statute is not
impermissibly broad, whether considered on its face or as
interpreted by this court.” (People v. Dykes (2009) 46 Cal.4th
731, 813.) We have “reject[ed] the claim that section 190.3,
factor (a), on its face or as interpreted and applied, permits
arbitrary and capricious imposition of a sentence of death.”
(Ibid.; see Tuilaepa v. California (1994) 512 U.S. 967, 975–976,
978.)
“The death penalty statute does not lack safeguards to
avoid arbitrary and capricious sentencing . . . or constitute cruel
and unusual punishment on the ground that it does not require
either unanimity as to the truth of aggravating circumstances
or findings beyond a reasonable doubt that an aggravating
circumstance (other than Pen. Code, § 190.3, factor (b) or factor
(c) evidence) has been proved, that the aggravating factors
outweighed the mitigating factors, or that death is the
appropriate sentence.” (People v. Rangel (2016) 62 Cal.4th
1192, 1235.) “[A]t the penalty phase . . . no further facts need to
be proved in order to increase the punishment to . . . death.”
(People v. Griffin (2004) 33 Cal.4th 536, 595.) Nothing in

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Hurst v. Florida (2016) 577 U.S. __ [136 S.Ct. 616],
Cunningham v. California (2007) 549 U.S. 270, Blakely v.
Washington (2004) 542 U.S. 296, Ring v. Arizona (2002)
536 U.S. 584, or Apprendi v. New Jersey (2000) 530 U.S. 466,
undermines these conclusions. (Rangel, at p. 1235, fn. 16.)
“No burden of proof is constitutionally required, nor is the
trial court required to instruct the jury that there is no burden
of proof.” (People v. Dement (2011) 53 Cal.4th 1, 55.) The trial
court need not instruct that there is a presumption of life, that
if the mitigating factors outweigh the aggravating factors the
jury should impose a sentence of life imprisonment without the
possibility of parole, or that a jury need not be unanimous in
finding the existence of a mitigating factor. (People v. Williams
(2016) 1 Cal.5th 1166, 1204; People v. Adams (2014) 60 Cal.4th
541, 581; Moore, supra, 51 Cal.4th at pp. 1139–1140.)
“[U]nanimity with respect to aggravating factors is not required
by statute or as a constitutional procedural safeguard.” (People
v. Taylor (1990) 52 Cal.3d 719, 749.)
The language “so substantial” and “warrants” in CALJIC
No. 8.88 is not impermissibly vague. (People v. Romero and Self
(2015) 62 Cal.4th 1, 56.) The trial court was not required to
delete inapplicable factors from CALJIC No. 8.85 (People v.
Watson (2008) 43 Cal.4th 652, 701), or “instruct that the jury
can consider certain statutory factors only in mitigation”
(Valencia, supra, 43 Cal.4th 268, 311).
“The federal constitutional guarantees of due process and
equal protection, and against cruel and unusual punishment
[citations], do not require intercase proportionality review on
appeal.” (People v. Mai (2013) 57 Cal.4th 986, 1057.) “Moreover,
‘capital and noncapital defendants are not similarly situated

53
 PEOPLE v. RIVERA
Opinion of the Court by Liu, J.

and therefore may be treated differently without violating’ a
defendant’s right to equal protection of the laws, due process of
law, or freedom from cruel and unusual punishment.” (People
v. Carrasco (2014) 59 Cal.4th 924, 971.) “ ‘The death penalty as
applied in this state is not rendered unconstitutional through
operation of international laws and treaties.’ ” (People v.
Jackson (2016) 1 Cal.5th 269, 373.)
F. Cumulative Effect of Guilt and Penalty Phase
Errors
Rivera contends that the penalty judgment must be
reversed due to the cumulative prejudice of the alleged errors
during the guilt and penalty phases in violation of his due
process right to a fundamentally fair and reliable trial under the
California and federal Constitutions. We have assumed one
error in the penalty phase: the trial court’s decision to admit
evidence of Rivera’s postcrime statements and conduct under
factor (a). Even if the trial court erred by admitting this
evidence, it was not individually prejudicial and is unrelated to
the previously discussed guilt phase errors. We conclude that
no identified or assumed error, individually or cumulatively,
requires reversal of the judgment. (See People v. Bolden (2002)
29 Cal.4th 515, 567–568.)
G. Restitution and Parole Revocation Fines
Rivera contends, and the Attorney General agrees, that
the trial court erred by imposing two fines in excess of the
statutory maximum: a restitution fine of $23,600 imposed
under Penal Code section 1202.4, subdivision (b), and a parole
revocation fine of $23,600 imposed under Penal Code section
1202.45. The statutory maximum for each fine is $10,000. (Pen.

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 PEOPLE v. RIVERA
Opinion of the Court by Liu, J.

Code, § 1202.4, subd. (b); see People v. Blackburn (1999) 72
Cal.App.4th 1520, 1534 (Blackburn).)
Unauthorized sentences are those that “ ‘could not
lawfully be imposed under any circumstance in the particular
case’ ” (People v. Smith (2001) 24 Cal.4th 849, 852), including a
trial court’s imposition of a restitution fine in excess of the
maximum amount permitted by the applicable statute
(Blackburn, supra, 72 Cal.App.4th at p. 1534). An unauthorized
sentence is reviewable on appeal regardless of whether it was
objected to at trial. (Smith, at p. 852.) When a trial court
imposes fines in excess of the statutory maximum, the proper
remedy is to modify the judgment to reduce the fines to the
statutory maximum. (Blackburn, at p. 1534.) Accordingly, we
will modify the judgment to reduce the restitution fine pursuant
to Penal Code section 1202.4, subdivision (b), to $10,000, and the
parole revocation fine pursuant to Penal Code section 1202.45
to $10,000.
CONCLUSION
We modify the judgment to reduce the restitution and
parole revocation fines to $10,000 each. We affirm the judgment
as modified.
LIU, J.

We Concur:
CANTIL-SAKAUYE, C. J.
CHIN, J.
CORRIGAN, J.
CUÉLLAR, J.
KRUGER, J.
GROBAN, J.

55
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Rivera
__________________________________________________________________________________

Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No. S153881
Date Filed: May 23, 2019
__________________________________________________________________________________

Court: Superior
County: Colusa
Judge: S. William Abel

__________________________________________________________________________________

Counsel:

Stephen M. Lathrop, under appointment by the Supreme Court, for Defendant and Appellant.

Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell and Ronald S. Matthias, Assistant Attorneys General, Sean M. McCoy and
Darren K. Indermill, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Stephen M. Lathrop
Law Offices of Lathrop & Villa
904 Silver Spur Road, #430
Rolling Hills Estates, CA 90274
(310) 237-1000

Darren K. Indermill
Deputy Attorney General
1300 I Street, Suite 125
Sacramento, CA 94244-2550
(916) 210-7689