People v. Rivera
| Decision Date | 23 May 2019 |
| Docket Number | S153881 |
| Citation | 247 Cal.Rptr.3d 363,7 Cal.5th 306,441 P.3d 359 |
| Court | California Supreme Court |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Cuitlahuac Tahua RIVERA, Defendant and Appellant. |
Stephen M. Lathrop, Rolling Hills Estates, under appointment by the Supreme Court, for Defendant and Appellant.
Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell and Ronald S. Matthias, Assistant Attorneys General, Sean M. McCoy and Darren K. Indermill, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Cuitlahuac Tahua Rivera was convicted and sentenced to death for the murder of Stephan Gene Gray, a peace officer. ( Pen. Code, §§ 187, 189.) The jury found true special circumstance allegations that (1) the murder was committed for the purpose of avoiding or preventing a lawful arrest, or perfecting or attempting to perfect, an escape from lawful custody; and (2) the murder involved the intentional killing of a peace officer engaged in the course of his duties. ( Pen. Code, § 190.2, subd. (a)(5), (a)(7).) The jury found not true the special circumstance allegation that the murder was committed as a member of and to further the activities of a criminal street gang. ( Pen. Code, § 190.2, subd. (a)(22).) Rivera was also convicted and sentenced for two counts of unlawful possession of a firearm by a felon, two counts of shooting at an occupied vehicle, and two stayed counts of assault with a semiautomatic firearm. The jury found true all alleged enhancements, including that the offenses of murder and unlawful possession of a firearm were "committed for the benefit of, at the direction of, or in association with any criminal street gang" for the purposes of Penal Code section 186.22, subdivision (b)(1) ’s gang enhancement. This appeal is automatic.
We modify the judgment as to certain fines imposed by the trial court, and we affirm the judgment as modified.
Trial began on April 13, 2007. The prosecution presented evidence, including testimony by Jamilah Peterson, Rivera’s girlfriend at the time, and other witnesses, pointing to Rivera as the perpetrator of two shootings on April 11, 2004, and April 15, 2004. The second shooting resulted in the death of Officer Gray of the Merced Police Department. Rivera conceded that he shot and killed Officer Gray while fleeing from a parole search resulting from a traffic stop. Rivera further admitted that he was a member of the Merced Gangster Crips at the time of the shooting. But he denied that the shooting was premeditated, that the shooting was in furtherance of the gang, and that he previously shot anyone else as the prosecution alleged.
The prosecution argued that Rivera and Officer Gray were "very familiar" with one another and "knew each other on sight," based in part on Rivera’s membership in the Merced Gangster Crips street gang and Officer Gray’s work with the Merced Police Department’s gang unit, for which he was assigned to monitor the Merced Gangster Crips. The two individuals had several encounters before the events on April 11, 2004, and April 15, 2004. LaDonna Davis-Turner, who was acquainted with Rivera through a friend, described an "altercation" that occurred when Officer Gray attempted to arrest Rivera in 1999 or 2000. Rivera was drunk, aggressive, and yelling profanities, and Officer Gray had to slam Rivera to the ground to get him under control.
Peterson testified about another encounter during which Rivera abandoned Peterson’s car on the side of the road to evade Officer Gray, who had been following him. Peterson called Officer Gray to attempt to get her car back. Officer Gray informed her that he would only return the car if Rivera would speak with him. Peterson subsequently contacted Rivera, but Rivera refused to speak to Officer Gray. On yet another occasion, Officer Gray came to Peterson’s house to speak with Rivera. Peterson testified that although Officer Gray was always professional, he would lecture Rivera about how he had a daughter and family, and that it was a bad idea to hang around "with the people he was hanging around with." Officer Gray warned Rivera that he was watching and if Rivera did anything, Officer Gray would come get him. Rivera expressed to Peterson that Officer Gray was always harassing him, and he resented Officer Gray’s separate conversations with Peterson about how being associated with Rivera would cause problems in her life. At one point, Peterson suggested to Rivera that perhaps he, rather than Officer Gray, was the source of the problem. Peterson also testified that Rivera and his family told her that Rivera and Officer Gray once had a physical altercation that resulted in Rivera’s hospitalization.
Adel Mohammed, who owned a liquor store in Merced that Rivera visited on the night of April 15, 2004, testified that at some point in 2000 or 2001, Rivera pointed a gun at him and his friend Larry Gonzalez while Mohammed and Gonzalez were sitting in a car outside of a different liquor store. Marlon Bradley, who knew Rivera from childhood, testified to a separate incident that occurred on September 30, 2000. Marlon testified that his brother, Edward Bradley, attended a party at which a conflict arose between members of two rival gangs, the Merced Gangster Crips and the Merced Bloods. After the party, Marlon became aware that Rivera had arrived at his home with an individual named Gerard Roberts. Marlon stepped outside to join his brother and his friend Calvin Huffman. Marlon testified that Roberts encouraged Rivera to "Hit them niggers." Rivera shot six to eight bullets from a revolver at the three men. Marlon did not have a weapon and believed his brother and Huffman were also unarmed. Marlon tried to run, fell, continued running into the house after Rivera stopped shooting, and told his mother to call the police. When the police arrived, Marlon informed them that Rivera shot at him. Peterson testified that she was not aware of the incident at the liquor store involving Mohammed, but she did overhear Roberts refer to having "taken care" of some members of the Merced Bloods after a party in September 2000.
Peterson testified that on April 11, 2004, she and Rivera attended a family gathering at Applegate Park. Rivera left the park in Peterson’s car, a Mazda Protegé, accompanied by Rivera’s friend (also a member of the Merced Gangster Crips) and Peterson’s stepfather. Rivera did not have a driver’s license, registration, or insurance, and Peterson thought he would get in trouble if he was pulled over, but she did not stop him.
Kimberly Bianchi testified that on the same day, she and her boyfriend Aaron McIntire were driving near John Muir Elementary School when they encountered three men in a teal green vehicle at an intersection. Bianchi and McIntire both testified seeing the men looking at them in a threatening manner and throwing up their hands "like there was a problem."
Bianchi saw the driver display a handgun and fire three shots at them. McIntire saw the driver leaning out the driver’s window pointing a handgun at him. As McIntire sped away, he heard three gunshots in quick succession. McIntire sustained a gunshot wound to the ankle.
Bianchi and McIntire identified the teal Mazda Protegé carrying Rivera as the vehicle from which the shots were fired. Officer Frank Bazzar recovered three cartridge casings at the scene of the shooting. Upon inspecting McIntire’s car, he noted a bullet hole in the lower portion of the driver’s door and a hole in the left side of the rear bumper, as well as a bullet on the back floorboard behind the passenger seat.
Bianchi described the driver as Hispanic with a white tank top and dark, "pouffy" hair. During a photo lineup of six men several months after the incident, Bianchi was unable to pick out the driver (Rivera). While testifying at the preliminary hearing, Bianchi was unsure whether Rivera was the driver. At trial, Bianchi identified Rivera as the driver, testifying that she was now "pretty positive" it was him. McIntire also identified Rivera at trial as the driver and shooter. McIntire averred that he had been "positive" it was Rivera essentially since the day of the shooting, but his testimony at the preliminary hearing was unsure.
Officer Sean Greene, who worked with Officer Gray on the Merced Police Department’s gang unit, and Officer Colin Smith, who worked on the Merced Police Department’s special operations unit, testified that Rivera’s name came up at a meeting on April 13, 2004 as a possible person of interest in the McIntire shooting. Officer Smith explained that at the time, Rivera was one of just a few Hispanic men associated with the Merced Gangster Crips.
Peterson testified to the incidents leading up to the shooting on April 15, 2004. That day, after being at Peterson’s mother’s apartment, Rivera asked Peterson to take him to "The Hut." Peterson described The Hut as "a place where people hang out: They gamble, they do drugs, people sell drugs." Peterson drove Rivera and their two-year-old daughter south on Glen Avenue in the direction of The Hut, intending to stop at a gas station first. At a four-way stop, Peterson and Rivera saw and immediately recognized Officer Gray, who was traveling east in another vehicle. Officer Gray turned his car around and followed Rivera and Peterson south. Peterson told Rivera that there was nothing to worry about because she had a license and insurance. Rivera responded, Peterson again reassured Rivera that they had nothing to worry about. Peterson did not know Rivera had a gun, nor that as a parolee he could be...
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