People v. Rivera

• Decision Date: 24 December 1981
• Docket Number: Cr. 13082
• Citation: 179 Cal.Rptr. 384,127 Cal.App.3d 136
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Richard Raul RIVERA, Defendant and Appellant.

Page 384

179 Cal.Rptr. 384

127 Cal.App.3d 136

The PEOPLE, Plaintiff and Respondent, v. Richard Raul RIVERA, Defendant and Appellant.

Cr. 13082.

Court of Appeal, Fourth District, Division 1, California.

Dec. 24, 1981.

Hearing Denied March 3, 1982.

Quin A. Denvir, State Public Defender, and Charles M. Sevilla, Chief Deputy State Public Defender, under appointment by the Court of Appeal, for defendant and appellant.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Daniel J. Kremer, Asst. Atty. Gen., Steven H. Zeigen and Jesus Rodriguez, Deputy Attys. Gen., for plaintiff and respondent.

WORK, Associate Justice.

Richard Raul Rivera was convicted of first degree burglary (Pen.Code, § 459) ¹ and assault with intent to commit murder (§ 217), the latter being accompanied by three enhancing allegations. He challenges the convictions on multiple grounds including impermissibly vindictive prosecution, prejudicial denial of a continuance to conduct a lineup, prejudicially admitting his post-arrest statement taken in violation of Miranda, and instructional error regarding malice. We conclude the relevant facts show the addition of the count alleging assault with the intent to commit murder after Rivera rejected the prosecutor's second plea bargain offer was not impermissibly vindictive and did not violate due process of law as guaranteed under either the United States or California Constitutions. We also find Rivera's remaining contentions be meritless and affirm.

Factual Background

When Julie Rogers returned to her apartment on August 30, 1980, at about 11:00 p. m., she noticed an apartment window open with the screen missing. She then heard noises from inside as if someone hurried to a window, opened it, and jumped outside causing a crashing sound. She found no one inside, but the place had been ransacked, her jewelry, coins and a camera being taken.

Meanwhile, James Miller, walking near the apartment building, heard a loud noise and saw a man jump a fence of the apartment building and walk toward him. When approximately twenty to thirty feet from Miller the man turned and walked toward some parked cars. Simultaneously, John Nudek, Miss Rogers' neighbor, heard the loud noise; instructed his wife to call the police; and went outside where he saw Miller who directed him to where the intruder had gone. Nudek approached Rivera, asking him what he was doing and was told he was waiting for his girlfriend who lived close by. Nudek asked where she lived and Rivera pointed to a nearby building, following which Rivera said "get away from me old man," and proceeded to walk toward an alley. Nudek followed him into the alley, a struggle ensued and Rivera then fled, leaving behind Nudek who had been stabbed in the chest.

As Officer Newberry arrived on the scene, he saw a man running diagonally across Utah street past him. He watched him closely and then continued to Nudek's location. When he arrived the assailant was described as: five foot seven, about 165 pounds, of Mexican ancestry, scraggly facial hairs, white T-shirt, moustache, and as wearing dark trousers, a white tank top, black woven sandals, and a scraggly beard. Realizing the person he saw run past him matched this description, Newberry searched for him, later finding Rivera crouched beneath a bush. When apprehended Rivera was wearing no shirt; his face was red and flushed; and he was sweating profusely. The officer recognized him as the same person he had seen earlier and, after searching the bushes, he found a wet, white tank top T-shirt smelling of perspiration. He placed it over Rivera's head and transported him back to Idaho Street where both Nudek and Miller positively identified him as the assailant.

Nudek, a sixty-three-year-old man, suffered multiple stab wounds to the chest, upper abdomen, groin, and hip. Two chest wounds penetrated the lung cavities, collapsing his lungs and later causing pneumonia. If the wounds had not been treated promptly, Nudek's life would have been endangered.

Procedural History

Rivera was originally charged only with assault with a deadly weapon and burglary (§§ 245, subd. (a), and 459). He was offered a plea to the assault without any special allegation. At the preliminary hearing on September 19, 1980, he unsuccessfully moved to relieve his attorney for failure to request a pretrial lineup. His counsel then moved for a continuance in order to schedule a lineup, which was denied as untimely. He was bound over on both charges and arraigned on the information to which he pleaded not guilty. Two days before the readiness conference, Rivera was told the prosecution intended to file an amended information charging more serious crimes and enhancing allegations. At the conference, he was offered a plea to section 245, subdivision (a), with a section 12022.7 allegation, shown a copy of the amended information and told that after the conference the People would require a plea to the amended information. Rivera rejected the offer. True to his word, the prosecutor then filed the amended information charging Rivera in count one with burglary committed within an inhabited building in the nighttime; with personally using a knife during the burglary (§ 12022, subd. (b)) and inflicting great bodily injury upon the victim (§§ 12022.7 and 1203.075, subd. (a)(6)). In count two, he was charged with assault with intent to commit murder (§ 217), while using a knife (§ 12022.7), and inflicting great bodily injury within the meaning of section 1203.075, subdivision (a)(6) on a person sixty-years of age or older (§ 1203.09, subd. (a)). In count three, he was charged with assault with a deadly weapon (§ 245, subd. (a)), while inflicting great bodily injury within the meaning of section 12022.7. Before trial, the special allegations in count one were stricken, as was the section 1203.075, subdivision (a)(6) allegation in count two. Count three was also dismissed.

Rivera's section 995 challenge to the amended information as retaliatory for persisting in requesting a lineup and punitive for insisting on his right to a jury trial, and because he was refused a pre-preliminary hearing lineup, was denied.

RIVERA'S DUE PROCESS RIGHTS WERE NOT VIOLATED DURING PLEA BARGAINING

Rivera first contends adding the count alleging assault with intent to commit murder after he refused to accept the prosecutor's second plea bargain offer was impermissibly vindicative and violated due process of law guaranteed under the United States (Fifth Amendment) and California (art. I, sections 7 and 15) Constitutions requiring his conviction be reduced to the offense originally charged, assault with a deadly weapon.

It is undisputed Rivera was originally charged by complaint and in the original information with one count of assault with a deadly weapon with a single enhancement and one count of burglary. Before the preliminary hearing, Rivera was first offered a plea to the assault without any special allegations. He refused. At the readiness conference, Rivera received a second, less lenient, offer of a plea to the assault, now accompanied by an enhancement for intentionally inflicting great bodily injury. He was also shown a copy of the amended information and told the offer would be withdrawn if rejected. Rivera declined the offer and the amended information was filed.

The United States Supreme Court in Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604, addressed this precise issue. There, the prosecutor offered to recommend a five-year sentence if Hayes pleaded guilty to forgery. He further told Hayes if he did not plead guilty and "gave the court the inconvenience and necessity of a trial," then he would seek reindictment under the state's recidivist statute, subjecting him to a mandatory sentence of life imprisonment because of two prior felony convictions. Hayes chose to stand trial and the prosecutor carried out his threat. Hayes was convicted and sentenced accordingly. The Supreme Court first carefully defined the issue in dispute by stating:

"While the prosecutor did not actually obtain the recidivist indictment until after the plea conferences had ended, his intention to do so was clearly expressed at the outset of the plea negotiations. Hayes was thus fully informed of the true terms of the offer when he made his decision to plead not guilty. This is not a situation, therefore, where the prosecutor without notice brought an additional and more serious charge after plea negotiations relating only to the original indictment had ended with the defendant's insistence on pleading not guilty. (Fn. omitted.) As a practical matter, in short, this case would be no different if the grand jury had indicted Hayes as a recidivist from the outset, and the prosecutor had offered to drop the charge as part of the plea bargain." (Bordenkircher v. Hayes, 434 U.S. 357, 360, 98 S.Ct. 663, 666, 54 L.Ed.2d 604.)

The court found no due process violation, recognized the plea bargaining process as an important component of the criminal justice system (id. at p. 362, 98 S.Ct. at p. 667), and reasoned there is no element of punishment or retaliation in the "give-and-take" of plea bargaining so long as the accused is free to accept or reject the prosecutor's offer (id. at p. 363, 98 S.Ct. at p. 667). The court further explained:

"While confronting a defendant with the risk of more severe punishment clearly may have a 'discouraging effect on the defendant's assertion of his trial rights, the imposition of these difficult choices (is) an inevitable'-and permissible-'attribute of any legitimate system which tolerates and encourages the negotiations of pleas.' Chaffin v. Stynchcombe, supra, (412 U.S. 17, 93 S.Ct. 1977, at 1985, 36 L.Ed.2d 714,) at 31. It follows that, by tolerating and encouraging the negotiation of pleas, this Court has necessarily accepted as constitutionally legitimate the simple reality that the prosecutor's interest at...