People v. Rivera CA2/3 ( 2020 )

Filed 8/20/20 P. v. Rivera CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B297551
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA459245)
v.
ALBERTO RAFAEL RIVERA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Henry J. Hall, Judge. Affirmed.
Christine M. Aros, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Noah P. Hill and John Yang, Deputy Attorneys
General, for Plaintiff and Respondent.
——————————
A jury found Alberto Rafael Rivera guilty of attempted
murder and shooting at an occupied vehicle. On appeal, he
contends there was insufficient evidence he either directly
perpetrated the crimes or aided and abetted them. We disagree
and affirm the judgment.
BACKGROUND
I. The attempted murder
Rivera was jointly tried with fellow Easy Rider gang
members Ronald Hernandez and Dario Alfaro for attempted
murder and shooting at an occupied vehicle. Rivera’s gang
moniker was Drowzy, Hernandez was known as both Stranger
and Muerto, and Alfaro’s gang moniker was Lil Boy.
The victim testified that on July 13, 2017, at 2:20 p.m., he
was driving to a friend’s house. He was in the area of
Washington Boulevard and Westmoreland in his Mustang when
he heard someone yell. Assuming that someone he knew had
called to him, he made a U-turn and stopped in front of an
apartment building where three Hispanic men had been
standing, two of whom the victim identified as Hernandez and
Rivera. Hernandez and Rivera walked up to the victim, who
said, “What’s up?” Hernandez and Rivera threw gang signs and
replied, “Riders.” The victim did not associate with gangs, so he
left. Hernandez then threw something at the victim’s car.
Later, as the victim was taking a shortcut through a nearby
car wash, he saw Hernandez and Rivera in a Mercedes.
Hernandez was driving, and Rivera was the front passenger. The
victim could not tell if anyone else was in the car. The Mercedes
made a U-turn to follow the victim. The victim saw Rivera reach
down towards his feet. As the Mercedes got closer, the victim
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sped away. When the victim turned onto another street, he
heard his pursuers revving the engine, and then the Mercedes
ran into the victim’s car. Multiple gunshots then struck the
victim’s car.
A witness saw the victim’s Mustang speed up from behind
him and a Mercedes crash into the Mustang. Someone fired a
revolver three to four times from the passenger side back seat of
the Mercedes. However, the witness could not tell how many
people were in the Mercedes and saw none of their faces.
Around the time of these events, at 2:32 p.m., Alfaro texted
his girlfriend that if she got “a jail call[,] answer.” He later told
her that he, Hernandez, and another guy had an altercation with
someone whom they chased and crashed into. He said they were
in Hernandez’s car, and shots were fired. The day after the
shooting, Alfaro told his girlfriend he had to find the gun, which
he called the “bitch,” and move it.1 He was going to look for the
gun near Hernandez’s house, and he was waiting for Drowzy to
get back to him. Alfaro also told his girlfriend that they acquired
the gun three days before the shooting.
The day before the shooting, Rivera had complained to
Alfaro in text messages that Hernandez was keeping the gun
from him. Another Easy Rider gang member known as “Kasper”
resolved the dispute by designating Alfaro to be “on point,”
meaning in charge of the gun. Kasper instructed that the gun
was for emergencies only and that Alfaro should keep it unless
either Kasper or “Sparks” (another Easy Rider) asked for it.
Alfaro confirmed that he had the gun.
1 Law enforcement never recovered the gun.
3
The night of the shooting, Kaspar asked Alfaro if the “girl is
cool.” Alfaro responded that he had moved “her to a better spot
me and ‘Strange’ know.”
The day after the shooting, Rivera told Alfaro via Facebook
that Strangers had been arrested, and “someone followed us and
snitched.”
II. The defense
Hernandez testified in his defense. He admitted having the
gun in the days preceding the shooting, but he gave it to Alfaro
the morning before the shooting. On the day of the shooting,
Hernandez was hanging out with Alfaro and Rivera. However,
Hernandez did not witness the verbal exchange Alfaro and
Rivera had with the victim. Hernandez, Alfaro, and Rivera got
into Hernandez’s car to go to the park. Hernandez drove, Alfaro
was in the backseat, and Rivera was the front seat passenger.
When they happened upon the victim, Rivera said that he was
going to “dump on” him and pulled out a gun. Alfaro said that he
wanted to be the one to shoot the victim. Although Hernandez
tried to drive in a manner to avoid any confrontation, Rivera shot
at the victim.
III. Verdict and sentence
A jury found Rivera guilty of willful, deliberate, and
premeditated attempted murder (Pen. Code,2 §§ 187, subd. (a),
664, subd. (a); count 1) and of shooting at an occupied motor
2 All further statutory references are to the Penal Code.
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vehicle (§ 246; count 3).3 As to both counts, the jury found true
gang (§ 186.22, subd. (b)) and principal gun use (§ 12022.53,
subds. (b), (c), (e)(1)) allegations.
On April 24, 2019, the trial court sentenced Rivera on count
1 to life with a minimum parole eligibility of seven years plus 20
years for the gun enhancement (§ 12022.53, subds. (c) & (e)). The
trial court imposed but stayed sentences on the remaining count
and enhancements.
DISCUSSION
Rivera contends there is insufficient evidence he either
directly perpetrated the offenses or aided and abetted them. We
disagree.
“ ‘When considering a challenge to the sufficiency of the
evidence to support a conviction, we review the entire record in
the light most favorable to the judgment to determine whether it
contains substantial evidence—that is, evidence that is
reasonable, credible, and of solid value—from which a reasonable
trier of fact could find the defendant guilty beyond a reasonable
doubt. [Citation.] We presume in support of the judgment the
existence of every fact the trier of fact reasonably could infer 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
3 The jury acquitted Rivera of assault with a deadly weapon
(§ 245, subd. (a)(1); count 2). The jury found Hernandez and
Alfaro guilty of the same crimes, allegations, and vandalism.
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reasonably be reconciled with a contrary finding.’ ” (People v.
Covarrubias (2016) 1 Cal. 5th 838, 890.)
Shooting at an occupied vehicle requires a willful and
malicious shooting of a firearm at an occupied vehicle. (§ 246.)
“Attempted murder requires the specific intent to kill and the
commission of a direct but ineffectual act toward accomplishing
the intended killing.” (People v. Lee (2003) 31 Cal. 4th 613, 623.)
To “be guilty of attempted murder as an aider and abettor, a
person must give aid or encouragement with knowledge of the
direct perpetrator’s intent to kill and with the purpose of
facilitating the direct perpetrator’s accomplishment of the
intended killing—which means that the person guilty of
attempted murder as an aider and abettor must intend to kill.”
(Id. at p. 624.) “ ‘A “person aids and abets the commission of a
crime when [that person], acting with (1) knowledge of the
unlawful purpose of the perpetrator; and (2) the intent or purpose
of committing, encouraging, or facilitating the commission of the
offense[;] (3) by act or advice aids, promotes, encourages or
instigates, the commission of the crime.” ’ ” (People v. Nguyen
(2015) 61 Cal. 4th 1015, 1054.) Factors relevant to aiding and
abetting are presence at the scene of the crime, companionship,
and conduct before and after the offense. (Ibid.)
Here, there was sufficient evidence Rivera was either the
direct perpetrator or an aider and abettor.4 As to Rivera being
the shooter, the victim saw Rivera reach down towards his feet.
Hernandez heard Rivera say he was going to “dump on” the
victim and saw Rivera shoot at the victim. That key evidence
4 Theprosecutor told the jury it need not determine who
was the shooter to find all three men guilty of the crimes.
6
Rivera was the shooter came from his codefendant is irrelevant;
the jury was entitled to consider Hernandez’s testimony. And as
to that testimony, we may not reevaluate a witness’s credibility
or reweigh the evidence. (People v. Brown (2014) 59 Cal. 4th 86,
106.) We therefore disagree with Rivera’s suggestion that the
jury must have disbelieved Hernandez because it found him
guilty of the offenses. To the contrary, the jury could have
believed that Hernandez was lying about the extent of his role in
the crime but telling the truth that Rivera was the shooter. A
trier of fact may accept part of the testimony of a witness and
reject another part, weaving a cloth of truth out of the evidence.
(Stevens v. Parke, Davis & Co. (1973) 9 Cal. 3d 51, 67–68.)
Rivera next argues that there is insufficient evidence he
aided and abetted the crimes, as it is “equally possible” the
shooter intended merely to scare or to intimidate the victim
rather than to kill him. This argument is another improper
request to reweigh the evidence on appeal. In any event, the
evidence is sufficient to show Rivera’s specific intent to kill the
victim. The day before the shooting, Rivera complained to fellow
gang members that he wanted a gun, which was ultimately given
to Alfaro to safeguard. Notwithstanding evidence that Alfaro was
supposed to be in charge of the gun, Rivera knew about and,
inferentially, had access to it.
Rivera and Hernandez then had an angry verbal exchange
with the victim during which someone called out their gang
name. When the victim left, they pursued him. Thus, Rivera
was not merely present in the car by happenstance. He was in
the car to go after the victim. And although gang evidence alone
cannot prove a defendant is an aider and abettor to a crime
(People v. Guillen (2014) 227 Cal. App. 4th 934, 992), here it
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strengthened the showing that Rivera pursued the victim to kill
him. That is, these events occurred in Easy Rider gang territory.
Per the People’s gang expert, as Easy Rider gang members,
Hernandez, Rivera, and Alfaro would have felt disrespected by
the victim saying “[w]hat’s up” to them, causing them to lash out.
So they pursued the victim in a dangerous manner, and someone
fired multiple shots which struck the victim’s car. Regardless of
who was the shooter, Alfaro and Rivera stated their intent
clearly: they both said they wanted to dump on—shoot—the
victim. Thus, Rivera’s presence at the scene of the crime,
companionship with his fellow gang members, and conduct before
the offense provided sufficient evidence to support his liability for
the offenses as an aider and abettor.5
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
DHANIDINA, J.
We concur:
LAVIN, Acting P. J.
EGERTON, J.
5 The
jury was not instructed on the natural and probable
consequences doctrine.
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