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People v. Rivera

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION ONE
Jan 20, 2012
B233834 (Cal. Ct. App. Jan. 20, 2012)

Opinion

B233834

01-20-2012

THE PEOPLE, Plaintiff and Respondent, v. PEDRO RIVERA, Defendant and Appellant.

Stephen Borgo, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County

Super. Ct. No. BA375762)

APPEAL from a Judgment of the Superior Court of Los Angeles County. John S. Fisher, Judge. Affirmed.

Stephen Borgo, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

FACTUAL BACKGROUND

On September 9, 2010, at about 1:15 a.m., the parking valet at Kitchen 24 on Cahuenga Boulevard saw defendant and a woman walking down the sidewalk toward his valet stand engaged in conversation. The valet could not understand what they were saying, but he could tell they were arguing. When the couple was about five or six feet from the valet, he saw defendant push the woman, Tatiana A., up against a wrought-iron door. Defendant pulled a gun from under his shirt, put it under Tatiana's chin, and told Tatiana that he would "blow her head off." The valet thought defendant was going to shoot Tatiana, but she responded, "Get the fuck out of my way" and pushed defendant away. Tatiana looked "like she didn't care" defendant was pointing the gun at her, and "she walk[ed] away like . . . it wasn't a gun." According to the valet and another witness to the incident, defendant never aimed the gun at himself. Tatiana walked toward Selma, the next cross-street, and defendant walked toward Hollywood Boulevard.

The valet told someone to call the police, and followed defendant. Defendant crossed to the other side of the street, and the valet followed him to an alley. The valet saw defendant go down the alley, and after about five minutes the police came. The officers arriving on the scene saw defendant peek out of the alley as they got out of their car. They apprehended defendant and ordered him down on the ground, and defendant said, "It's in my waistband." Police recovered a fully loaded .22-caliber revolver from defendant.

According to Tatiana, who testified on defendant's behalf at trial, she and defendant got into an argument at a club. They both left the club, and as they were walking, Tatiana told defendant to leave her alone. Defendant pulled out a gun and pointed it at his temple. He said, "'Look at what you're making me do.'" Tatiana responded, "'I don't care. Leave me the fuck alone.'" When she left, she went home. Tatiana was not afraid of defendant, although he had been sending her letters. She felt like defendant was obsessed with her, and wished he would leave her alone.

PROCEDURAL HISTORY

Defendant was charged in a one-count information with a violation of Penal Code section 245, subdivision (a)(2), assault with a firearm. The information further alleged that defendant personally used a firearm within the meaning of section 12022.5, subdivision (a), causing the underlying offense to become a serous felony under section 1192.7, subdivision (c)(8) and a violent felony under section 667.5, subdivision (c)(8). The trial court denied defendant's motion to dismiss pursuant to section 995.

All further statutory references are to the Penal Code unless otherwise indicated.

Jury trial commenced on March 22, 2011. The trial court denied defendant's motion for acquittal pursuant to section 1118.1 made after the prosecution's case in chief. The jury convicted defendant of the underlying offense and found true that defendant personally used a firearm during the commission of the offense. The trial court sentenced defendant to an aggregate term of eight years, consisting of the high term of four years for the violation of section 245, subdivision (a)(2), plus an additional four years pursuant to section 12022.5, subdivision (a). Defendant was given 282 days total credit.

We appointed counsel to represent defendant on appeal. After examination of the record, counsel filed an opening brief raising no issues and asking this court to independently review the record. On November 7, 2011, we advised defendant he had 30 days within which to personally submit any contentions or issues he wished us to consider. To date, we have received no response. We have examined the entire record and are satisfied that defendant's attorney has fully complied with her responsibilities and that no arguable issues exist. (People v. Kelly (2006) 40 Cal.4th 106, 109-110; People v. Wende (1979) 25 Cal.3d 436, 441.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED.

JOHNSON, J.

We concur:

ROTHSCHILD, Acting P. J.

CHANEY, J.


Summaries of

People v. Rivera

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION ONE
Jan 20, 2012
B233834 (Cal. Ct. App. Jan. 20, 2012)
Case details for

People v. Rivera

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. PEDRO RIVERA, Defendant and…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION ONE

Date published: Jan 20, 2012

Citations

B233834 (Cal. Ct. App. Jan. 20, 2012)