Filed 7/11/16 P. v. Rivas CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

RENE A. RIVAS,

Defendant and Appellant.

F071267

(Super. Ct. No. VCF293262)

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Tulare County. Darryl B. 

Ferguson, Judge.

Robert F. Kane, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney 

General, Michael P. Farrell, Assistant Attorney General, Lewis A. Martinez and Louis M. 

Vasquez, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

 

* Before Levy, Acting P.J., Kane, J. and Franson, J.
2.

INTRODUCTION

Appellant Rene A. Rivas contends his defense attorney rendered ineffective 

assistance of counsel because the attorney had a conflict of interest and failed to object to 

hearsay testimony. We conclude Rivas’s contention is without merit and affirm.

FACTUAL AND PROCEDURAL SUMMARY

The facts are somewhat convoluted, as Rivas had multiple cases pending at the 

same time. As there was no trial in any of the cases, facts are taken from transcripts of 

the hearings and the probation officer’s report.

On December 27, 2013, an officer attempted to effect a traffic stop because a 

vehicle did not have a front license plate. Rivas was the driver; however, he refused to 

stop and instead, increased his speed. Rivas lost control of the vehicle and crashed the 

car. He fled the scene, but was arrested in the area. Rivas gave a false name to officers. 

The car Rivas had been driving had been reported stolen by the owner. The license plate 

on the vehicle driven by Rivas belonged to a different car, indicating the license plate had 

been swapped with that of another vehicle. 

Rivas was charged in January 2014, in case No. 293262, in count one with 

unlawful taking of a vehicle, a violation of Vehicle Code section 10851, subdivision (a); 

count two with receiving stolen property, a violation of Penal Code1section 496d, 

subdivision (a); count three with resisting or obstructing a peace officer, a violation of 

section 148, subdivision (a)(1); and count four with petty theft, a violation of section 484, 

subdivision (a). It also was alleged that Rivas had two prior felony convictions and had 

served a prior prison term. 

On January 28, 2014, Rivas was represented by the public defender and pled not 

guilty to the charges in case No. 293262 and denied the allegations. 

 

1 References to code sections are to the Penal Code unless otherwise specified.
3.

On January 31, 2014, the trial court provided Rivas with an indicated sentence. 

Rivas was present in court with his defense counsel from the public defender’s office. 

Rivas pled no contest to counts two, three, and four in case No. 293262 and admitted 

section 666.5 and 667.5 allegations. 

On February 27, 2014, Rivas was sentenced to a three-year term in case No. 

293262. Two years were suspended; Rivas was placed on mandatory supervision, subject 

to various terms and conditions, including reporting to his probation officer. In addition, 

at this same hearing Rivas was sentenced in two other cases. In case No. 292637, he was 

ordered to serve 90 days and awarded credit for the 90 days he had served. In case No. 

291315, dating to 2013, Rivas was sentenced to three years’ probation, with 10 days in 

jail. Rivas was represented by the public defender’s office at this hearing. 

On August 13, 2014, a bench warrant was issued for Rivas for failure to comply 

with the terms of mandatory supervision. On August 21, 2014, the public defender was 

appointed to represent Rivas in the violation of probation matter and entered a denial of 

the violation. 

On August 28, 2014, Rivas was before the court in case No. 304894, where he was 

charged with giving false information to a police officer; case No. 299548 also was 

pending. In case No. 299548, Rivas had failed to appear for sentencing. Rivas was 

initially represented by the public defender, who stated:

“the Public Defender is declaring a conflict. I’m gonna return all the 

discovery to the Court. I have a whole stack of it here. He’s got like four 

or five cases. We have to declare a conflict in all of them.” 

The court relieved the public defender and appointed conflict counsel. The court 

was advised that Rivas also had case No. 293262 pending on a probation violation for 

failure to report to the probation officer. The court gave an indicated sentence; Rivas 

spoke with conflict counsel; Rivas pled no contest to the charge in case No. 304894; and 

Rivas admitted the probation violation in case No. 293262. 
4.

The court proceeded to sentence Rivas in case No. 299548, where Rivas had failed 

to appear for sentencing; case No. 304894 to which Rivas had pled no contest; case No. 

293262, where Rivas had admitted the probation violation; and case No. 291315. The 

court reinstated Rivas on mandatory supervision in case No. 293262. All remaining 

counts were dismissed by the People. 

On September 26, 2014, Rivas was again before the court and represented by the 

public defender in case No. 306631. Rivas pled no contest to violations of Health and 

Safety Code sections 11350 and 11550, and admitted two section 667.5, subdivision (b) 

allegations. By virtue of his plea, he admitted probation violations. Rivas was referred 

to the Recovery Court in case No. 306631; he was reinstated on probation in case Nos.

293262 and 299548. 

On December 31, 2014, a bench warrant was issued for Rivas. It was alleged he 

had violated two terms of mandatory supervision. 

On February 18, 2015, Rivas was before the court on probation and mandatory 

supervision violations. The public defender was appointed to represent Rivas and the 

matter set for further proceedings on February 25, 2015. On February 25, 2015, the 

matter was continued to March 10, 2015, for a contested hearing. 

On March 10, 2015, a contested hearing was held on the two alleged violations of 

mandatory supervision. Rivas was represented by the public defender. Testimony at the 

hearing from the probation officer was that after Rivas was placed on mandatory 

supervision, he met with the probation officer to review the terms of the mandatory 

supervision. A few months later when the probation officer went to check on Rivas at the 

home address he was given, Rivas’s teenage sister answered the door. When the question 

was posed asking the probation officer what Rivas’s sister had stated, defense counsel 

objected that the question called for hearsay. The objection was overruled. The 

probation officer then testified that the sister stated Rivas did not live at that address. The 
5.

probation officer also testified that Rivas violated the terms of mandatory supervision by 

not reporting as required to the Probation Accounting Services office. 

At the conclusion of the hearing, the court stated that regardless of whether there 

was a violation by failing to report an accurate home address, Rivas had violated the 

terms of mandatory supervision by failing to report to Probation Accounting Services. 

The trial court imposed 180 days of jail time for the violation, credited Rivas with 56 

days of credit against the 180 days, and reinstated mandatory supervision. 

On March 13, 2015, Rivas filed a notice of appeal. 

DISCUSSION

Rivas contends the public defender’s office rendered ineffective assistance of 

counsel because: (1) it had a conflict of interest; and (2) defense counsel failed to object 

to the sister’s comment to the probation officer on hearsay grounds. 

We summarily reject Rivas’s claim that defense counsel rendered ineffective 

assistance by failing to make a hearsay objection. The record clearly shows that defense 

counsel from the public defender’s office did in fact object to the challenged testimony 

on the basis of hearsay; the objection was overruled. Consequently, this claim by Rivas 

has no factual support in the record.

We will address, and reject, Rivas’s claim of ineffective assistance of counsel on 

the basis of a conflict of interest. 

The right to effective assistance of counsel includes the right to counsel that is free 

of any conflict of interest that undermines counsel’s loyalty to his or her client. (People 

v. Doolin (2009) 45 Cal.4th 390, 417.) A court accords great deference to a defense 

attorney’s opinion concerning the existence of a conflict of interest. (People v. Barboza

(1981) 29 Cal.3d 375, 378.)

Here, defense counsel asserted a conflict at the August 28, 2014, hearing, but did 

not state any facts regarding any potential or actual conflict. The court immediately 
6.

relieved the public defender and appointed conflict counsel without making any inquiry 

into the nature of any potential or actual conflict. 

Thereafter, at numerous subsequent hearings, the public defender was again 

counsel of record for Rivas. Rivas did not raise any objection to being represented by the 

public defender at any of these subsequent hearings. In order to sustain a claim of 

ineffective assistance of counsel on appeal, a defendant who raised no objection in the 

trial court must affirmatively demonstrate on appeal: (1) that an actual conflict of interest 

existed that adversely affected defense counsel’s performance; and (2) absent defense 

counsel’s deficiencies arising from the conflict, it is reasonably probable the result would 

have been different. (Mickens v. Taylor (2002) 535 U.S. 162, 166; Cuyler v. Sullivan

(1980) 446 U.S. 335, 348; People v. Mai (2013) 57 Cal.4th 986, 1009-1010.) 

No such showing has been, or can be, made here. There is no information 

whatsoever in the record regarding the basis for any actual or potential conflict by the 

public defender’s office. The public defender’s office never asserted any conflict at any 

subsequent hearings and we accord great deference to a defense attorney’s opinion 

concerning the existence of a conflict. (People v. Barboza, supra, 29 Cal.3d at p. 378.) 

There are no facts in the record that demonstrate an actual conflict existed. (Cuyler v. 

Sullivan, supra, 446 U.S. at p. 350.)

The only claim of deficient performance asserted by Rivas is the alleged failure to 

object to the sister’s statement on the basis of hearsay, a claim the record does not 

support. Defense counsel raised a hearsay objection, but was overruled. 

Moreover, the trial court noted that regardless of any statements made by the 

sister, Rivas had violated the terms of mandatory supervision by failing to report to the 

Probation Accounting Services office, which was the basis used by the court for finding a 

violation and imposing the 180 days in jail. The court continued Rivas on mandatory 

supervision, despite the violation. 
7.

Thus, there is no reasonable probability the result of the hearing on violation of the 

terms of mandatory supervision would have resulted in a different outcome. (People v. 

Mai, supra, 57 Cal.4th at pp. 1009-1010.) 

DISPOSITION

The judgment is affirmed.