People v. Rivera CA4/2

Filed 8/1/23 P. v. Rivera CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E079167
v. (Super.Ct.No. RIF2102360)
ADRIAN ANTHONY RIVERA, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Mark E. Johnson, Judge.
Affirmed.
Christine M. Aros, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Charles C. Ragland, Assistant Attorney General, Christopher P. Beesley and
Kristen Kinnaird Chenelia, Deputy Attorneys General, for Plaintiff and Respondent.
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A jury convicted Adrian Anthony Rivera of one count of rape in violation of Penal
Code section 261 subdivision (a)(2). On appeal, he argues that the trial court
prejudicially erred by admitting evidence of a prior uncharged offense. We find no error
and affirm.
BACKGROUND
Jane Doe 1 met Rivera sometime around December 2020 or January 2021, when
she purchased a computer from him. Several weeks later, someone broke into Doe 1’s
car and took her belongings. Doe 1 believed that Rivera did it, because the morning after
the break-in she found a hat in the car that she had seen Rivera wear.
A. The Incident Involving Doe 1
In June 2021, Doe 1 sometimes lived with her boyfriend and sometimes slept in
her car. One night that month, Doe 1 visited two friends in a motel room. Sometime
after midnight, Doe 1 left the motel room and went out to her car, which was parked in
the motel’s parking lot. She planned to get food. Doe 1’s car would not start, so she got
a battery charger from the trunk. When Doe 1 reached into the car to get the charger,
someone walked behind her and “grabbed [her] butt.” Doe 1 turned her head around,
realized that Rivera had done it, and told him, “‘don’t touch me.’” Rivera walked away.
Doe 1 became nervous about being alone in the parking lot, but she did not want to return
to the room because she did not want Rivera to see where she could be found. Doe 1
called her friends, but they did not answer.
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Doe 1 opened the hood of the car and charged the battery. While she was at the
front of the car with the hood up, Rivera approached Doe 1 and offered her $400 to have
sex. She refused. Doe 1 released and stowed the support bar holding up the car’s hood.
Rivera pushed the upper half of Doe 1’s body underneath the hood of her car. The
car’s hood rested on top of Doe 1’s head. Doe 1 was afraid of Rivera and concerned for
her safety because Rivera had previously shown her a gun and said that “he was
prepared.” Rivera lifted Doe 1’s dress, pushed her underwear to the side, and put his
penis inside her vagina. Doe 1 did not agree to have sex with Rivera. She told Rivera
“no,” but she did not think that he heard her over the engine. Doe 1 “squirm[ed] some”
in an attempt “to keep him from being able to do anything,” moved her body away, and
did not cooperate. Rivera got frustrated, said, “this isn’t working,” stopped, and walked
away. Rivera’s penis was inside Doe 1 for less than 30 seconds. Rivera used one of his
hands to try “to get his penis to go in.”
Doe 1 got into her car and drove away but immediately returned because she had
left the battery charger, which she could not afford to replace. Doe 1 called her friends at
the motel, but they did not answer. Doe 1 was “in a state of shock” and drove to the
drive-through of a fast food restaurant and got food, as she had intended. Doe 1 drove
back to the motel to be with her friends. Rivera was in the motel parking lot. Doe 1 ran
upstairs and called 911 with her friends present. Doe 1 reported that she “just got raped
in the parking lot.” One of Doe 1’s friends testified that when Doe 1 returned to the
motel room she told them she had just been raped.
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B. The Investigation
Two sheriff’s deputies responded to the 911 call, and one interviewed Doe 1 and
her two friends at the motel. Doe 1 “was visibly shaken” and appeared to have been
“through some trauma.” Doe 1 told the deputy that while she was in the parking lot
jump-starting her car, Rivera grabbed her buttocks, propositioned her for sex, and
sexually assaulted her.
The deputies investigated the location where Doe 1 said the assault had occurred.
The dirt in the parking lot was damp and muddy. The deputies found two sets of
overlapping footprints facing the parking lot. The shoeprints were consistent with the
shoes Doe 1 and Rivera were wearing.
The deputies took Doe 1 to a hospital, where a nurse conducted a forensic
examination. Doe 1 described to the nurse how she had been attacked from behind while
looking under the hood of her car. Doe 1 had bruising on her front and inner left thigh.
The nurse observed redness in Doe 1’s “genital or vaginal area,” where Doe 1 also
reported feeling tenderness. The nurse swabbed Doe 1’s genitals for DNA.
The parties stipulated that a criminalist who had analyzed some of the DNA
samples collected from Doe 1 would testify that sperm on Doe’s vagina and vulva and
around her anus matched Rivera’s DNA.
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C. Uncharged Conduct Involving Jane Doe 2
Jane Doe 2 testified that Rivera sexually assaulted her in March 2021. Doe 2 was
homeless at the time. She described Rivera as an acquaintance she met several years
earlier.
One afternoon in late March 2021, Doe 2 went to a motel (not the same one that
Doe 1 visited in June) to visit her daughter-in-law. Rivera was in a car parked in the
motel parking lot. Doe 2 parked next to him and asked if he had any methamphetamine
to smoke. Rivera indicated that he did, so Doe 2 got into his car. Once Doe 2 got into
Rivera’s car, he drove away. Rivera would not tell her where they were going. He drove
to a church, parked, and covered the windshield.
Rivera removed Doe 2’s seat belt, reclined her seat, “jumped on top of” her, held
her down, and started pulling her pants off. Doe 2 asked Rivera “what he was doing” and
told him that she had a boyfriend, to “[q]uit pulling [her] pants down,” that she did not
want to be with him “like that,” and that she had not showered. Doe 2 “said no.” She did
not want to have sex with Rivera. Rivera told her to “relax” and to “just . . . go with it”
and “kept trying to push [her] back and pull [her] pants down.” Doe 2 was not wearing
underwear. Rivera pulled one of Doe 2’s pant legs off. Doe 2 struggled and attempted to
push Rivera off of her, but he managed to pull up her legs. Rivera penetrated her vagina
with his penis but “not completely.” One of Rivera’s hands was on his penis, and he used
the other to stop Doe 2 “from moving around.” The assault lasted 10 to 15 minutes. Doe
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2 believed that Rivera had ejaculated inside of her. Doe 2 was not sure why Rivera
stopped.
While he moved off of Doe 2’s body, Rivera said, “I’ve been waiting a long time
for this or I’ve been waiting a long time for you.” Rivera returned to the driver’s seat and
offered Doe 2 a pipe to smoke methamphetamine, which she declined. Rivera gave Doe
2 perfume or body spray and drove her back to her car.
That night, Doe 2’s daughter-in-law took her to a hospital because Doe 2 had a
“bad headache.” Doe 2 had run out of her blood pressure medication days before. Doe 2
did not tell her daughter-in-law or anyone at the hospital what had happened.
Three weeks later, Doe 2 was at her friend William M.’s house when Rivera
showed up and asked to speak with Doe 2. Doe 2 and William were outside when Rivera
arrived. Doe 2 started crying, went inside, did not interact with Rivera, and told William
that she did not want Rivera there. Doe 2 told William that Rivera had raped her.
William testified and confirmed that Doe 2 told him that Rivera “forced himself on her
and that he raped her” about three weeks earlier. William said that Doe 2 was crying and
breathing heavily. William described her as distraught, upset, nervous, and afraid.
Doe 2 did not report the rape to law enforcement. She feared Rivera, so she filled
out the paperwork to get a restraining order against him but did not file it.
A detective who had worked in the sexual assault and child abuse unit of a law
enforcement agency testified that adult sexual assault victims do not disclose for
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numerous reasons, including embarrassment, shame, fear of the perpetrator, and not
wanting to be stigmatized as a victim.
In February 2022, Bertram Blinn, an investigator from the district attorney’s
office, contacted Doe 2 and asked if she had any information about Rivera. Doe 2 told
Blinn that Rivera had raped her. Doe 2 did not know Doe 1, but they had a mutual friend.
Doe 2 had told the mutual friend what happened to her and gave the friend permission to
provide Doe 1 with Doe 2’s contact information.
D. Defense Evidence
Rivera called Blinn as a witness. Blinn had learned about Doe 2 from Doe 1, who
texted him that Doe 2 might have some information. Doe 1 provided Blinn with Doe 2’s
contact information. Blinn interviewed Doe 2 twice. In the first interview, Doe 2 told
Blinn that Rivera “‘raped me’” eight to 10 months earlier. Doe 2 did not tell Blinn that
she and Rivera had ever smoked methamphetamine with each other.
DISCUSSION
Rivera argues that the trial court abused its discretion under Evidence Code
section 352 by admitting evidence of the prior uncharged sexual offense against Doe 2.
(Unlabeled statutory references are to the Evidence Code.) Rivera contends that the
evidence of the uncharged offense “necessitate[d] undue consumption of time” (§ 352),
which likely confused the jury “about why almost half the trial was spent on this
uncharged act.” We are not persuaded.
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A. Relevant Proceedings
Before trial, the prosecution moved under section 1108 and section 352 to
introduce evidence of the uncharged prior sexual offense against Doe 2. The prosecution
argued that there would be “little or no possibility that the prior crime evidence [would]
necessitate undue consumption of time,” so the factor weighed in favor of admitting the
evidence. The prosecution submitted that it would take approximately two to three hours
to present the evidence to the jury. The prosecutor otherwise estimated that the trial
would take eight days, but the prosecutor did not specify how much of that time would be
allocated to testimony. The prosecution’s witness list submitted the same day as the
motion in limine included 11 possible witnesses, including Doe 2.
Defense counsel did not file a written opposition to the prosecution’s motion. At
the pretrial hearing on the motion, defense counsel argued that admission of the evidence
would be “highly prejudicial to” Rivera, partly because it would require defense counsel
to conduct “a trial within a trial.” Defense counsel said that she “would spend a lot of
time with that witness [(Doe 2)] because that evidence, propensity, could lead to a
conviction even if the evidence in this current matter accedes.”
Before hearing the parties’ arguments on the issue, the court indicated that it was
inclined to admit the evidence under section 352. The court ruled that the evidence
constituted propensity evidence under section 1108 because it was a recent, similar act
and that “when you consider on the issue of propensity, that’s the relevant issue, that the
probative value is not significantly outweighed by the prejudicial impact.”
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B. Legal Framework
In general, “evidence of prior criminal conduct is inadmissible to show a
defendant’s predilection to commit other criminal acts.” (People v. Wang (2020) 46
Cal.App.5th 1055, 1074; § 1101, subd. (a).) Section 1108 provides an exception to that
general rule in cases involving sexual offenses. (People v. Villatoro (2012) 54 Cal.4th
1152, 1172.) In such cases, section 1108 provides that “evidence of the defendant’s
commission of another sexual offense or offenses is not made inadmissible” as propensity
evidence under section 1101 “if the evidence is not inadmissible” under section 352.
(§ 1108, subd. (a).) Section 352 generally gives a trial court discretion to “exclude
evidence if its probative value is substantially outweighed by the probability that its
admission will (a) necessitate undue consumption of time or (b) create substantial danger
of undue prejudice, of confusing the issues, or of misleading the jury.” We review a trial
court’s ruling under sections 352 and 1108 for abuse of discretion. (People v. Loy (2011)
52 Cal.4th 46, 61.) In reviewing the trial court’s ruling on whether the “evidence would
necessitate undue consumption of time,” we review the determination “based on matters
as they were before the trial court at the time of the motion, not at trial.” (People v.
Winkler (2020) 56 Cal.App.5th 1102, 1161 (Winkler).)
C. Analysis
Rivera concedes that the prior “alleged act was a sexual offense, a similar act, and
recent in time,” and he does not argue that the evidence was inadmissible under section
1108. He instead argues that the trial court “abused its discretion by essentially rubber-
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stamping the [section] 1108 evidence without a more thorough section 352 analysis.” His
sole argument concerning why the evidence should have been excluded under section 352
is that the evidence about the prior uncharged act occupied “[a]pproximately 40 percent
of the actual testimony at trial.” The estimation is based on Rivera’s posttrial assessment
of the testimony of Doe 2, Blinn, Doe 2’s friend William, and the detective who testified
as an expert about why sexual assault victims do not report being assaulted. Rivera
contends that the testimony concerning the uncharged conduct necessitated “an undue
consumption of time, which weighed in favor of excluding the evidence,” because “the
jury was likely confused about why almost half the trial was spent on this uncharged act.”
The arguments lack merit.
We assume for the sake of argument that Rivera’s calculation concerning the
percentage of trial time allocated to the uncharged conduct evidence is accurate. In
determining whether the trial court abused its discretion in admitting the evidence, we are
concerned with only the information available to the trial court when it ruled on the
prosecution’s motion. (Winkler, supra, 56 Cal.App.5th at p. 1161.) When the court ruled
on the pretrial motion, it had limited information about the amount of trial time that
would be dedicated to the uncharged conduct evidence. The prosecution claimed that it
would take two to three hours to introduce the uncharged act evidence, in a trial that was
estimated to last eight days. Defense counsel argued that she would “spend a lot of time”
cross-examining Doe 2 but did not quantify what that meant or whether she believed that
the time spent cross-examining Doe 2 would be “undue” compared to the remainder of
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the trial. On the basis of the information available when the court ruled on the evidence’s
admissibility, we conclude that the trial court did not abuse its discretion by admitting the
evidence of the uncharged sexual offense against Doe 2 and thereby concluding that its
admission would not “necessitate undue consumption of time” and substantially outweigh
the evidence’s probative value. (§ 352.)
Rivera’s posttrial calculation that 40 percent of the trial testimony was dedicated
to the uncharged conduct is not relevant to analyzing the propriety of the trial court’s
pretrial decision to admit the evidence. That calculation (or even an estimate similar to
it) was not available to the court when it ruled on the evidence’s admissibility. (Winkler,
supra, 56 Cal.App.5th at p. 1161.) Moreover, defense counsel did not argue that
admitting the evidence would be unduly time consuming.
We also reject Rivera’s argument that “the probability of confusing the jury with
[the uncharged act] evidence also weighed in favor of exclusion as the jury was likely
confused about why almost half the trial was spent on this uncharged act.” Again, when
the trial court ruled on the evidence’s admissibility, no party presented any information
showing that so much time would be dedicated to testimony about the uncharged
conduct. The court thus had no basis to conclude that the jury might be confused on that
basis.
In any event, any possible confusion of the jury would have been mitigated by the
instructions given. The jury was instructed with CALCRIM No. 1191A, which specified
the limited way in which the jury could consider the uncharged act evidence. The jury
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was instructed that if the prosecution proved by a preponderance of the evidence that
Rivera had committed the prior uncharged act, then the jury could consider the evidence
for the limited purpose of concluding that Rivera “was disposed or inclined to commit
sexual offenses, and based on that decision, [the jury] also [could] conclude that [Rivera]
was likely to commit and did commit the offense[] charged in this case, Rape.” The jury
also was instructed that it could “not consider this evidence for any other purpose.” We
presume the jury followed the instructions given. (People v. Parker (2022) 13 Cal.5th 1,
71.)
For these reasons, we conclude that the trial court did not abuse its discretion
under section 352 by admitting evidence of the prior uncharged sexual offense.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MENETREZ
J.
We concur:
CODRINGTON
Acting P. J.
RAPHAEL
J.
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