Opinion
F061332 Super. Ct. No. 09CM7555
09-12-2011
THE PEOPLE, Plaintiff and Respondent, v. LUCIO RIVERA, Defendant and Appellant.
William A. Malloy, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
THE COURT
Before Kane, Acting P.J., Detjen, J., and Franson, J.
APPEAL from a judgment of the Superior Court of Kings County. James T. LaPorte, Judge.
William A. Malloy, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
A jury convicted appellant, Lucio Rivera, of possession of a sharp instrument while confined in a penal institution (Pen. Code, § 4502, subd. (a)). In a separate proceeding, Rivera admitted allegations that he had three prior convictions within the meaning of the three strikes law (§ 667, subds. (b)-(i)). Following independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436, 441, we affirm.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTUAL AND PROCEDURAL HISTORY
On June 21, 2009, Rivera was involved in a riot at the Substance Abuse Treatment Facility (SATF) at Corcoran State Prison during which he suffered numerous stab wounds to the chest and back and a collapsed lung. Rivera was transported to the Community Regional Medical Center in Fresno and three days later passed a cylindrical object that contained a sharp instrument embedded in a hard piece of plastic, nine razor blades, and 18 kites, i.e., notes written by inmates.
On May 11, 2010, the district attorney filed an information charging Rivera with possession of a sharp instrument while confined in a penal institution and alleging that Rivera had three prior convictions within the meaning of the three strikes law.
On September 20, 2010, the evidentiary portion of Rivera's jury trial began. Correctional Officer Maria Arias testified that on June 21, 2009, she accompanied Rivera as he was transported by ambulance and helicopter to the Community Regional Medical Center in Fresno. When Rivera was placed on a table so a CT scan could be performed, Rivera told Arias that he had something in his rectum. After the CT scan was performed and some X-rays taken, other officers escorted Rivera to a bathroom but he was unable to pass the object. Rivera was placed in a room where he again attempted unsuccessfully to pass the object.
The CT scan was performed at 6:08 p.m. and showed an unidentified dense object in Rivera's rectum.
Correctional Officer Steve Osborn testified that on June 24, 2009, he and another officer guarded Rivera at the medical center. Rivera was confined to his hospital bed with restraints on his left and right wrists and on one leg. At approximately 1:00 p.m., Rivera told Osborn that he had a weapon in his anus and had been taking laxatives. After Rivera said he needed to use the bathroom, Osborn got a Port-A-Potty and placed it at the end of Rivera's bed. Osborn stayed in the room while Rivera had two bowel movements after which he heard Rivera state, "'it's out.'" Osborn then used a tongue depressor and tweezers to retrieve from the Port-A-Potty a cylindrical object, six to seven inches long that was made from a latex glove. Osborn placed the object in a biohazard bag, sealed it, and later gave the bag to Correctional Officer Jason Sanchez.
Officer Sanchez testified that after cleaning the cylindrical object he obtained from Rivera, he recovered a sharp metal object approximately 5.75 inches long embedded in a piece of hard plastic, a bindle containing nine razor blades, and a bindle containing 18 kites. The metal object was an inmate manufactured weapon that could be used for stabbing.
On September 21, 2010, after the jury began deliberating on the substantive charge, Rivera admitted that he had three prior convictions within the meaning of the three strikes law. Later that day, the jury found him guilty of the substantive offense.
On October 27, 2010, the court denied Rivera's Romero motion and sentenced him to an indeterminate term of 25 years to life, which it imposed consecutive to the 25 years to life sentence Rivera was serving when he committed the instant offense.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
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Rivera's appellate counsel has filed a brief, which summarizes the facts, with citations to the record, raises no issues, and asks this court to independently review the record. (People v. Wende, supra, 25 Cal.3d 436.) Rivera has not responded to this court's invitation to submit additional briefing.
Following an independent review of the record, we find that no reasonably arguable factual or legal issues exist.
DISPOSITION
The judgment is affirmed.