IN THE SUPREME COURT OF 

CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

CUITLAHUAC TAHUA RIVERA,

Defendant and Appellant.

S153881

Colusa County Superior Court

CR46819

May 23, 2019

Justice Liu authored the opinion of the court, in which Chief 

Justice Cantil-Sakauye and Justices Chin, Corrigan, Cuéllar, 

Kruger and Groban concurred.
1

PEOPLE v. RIVERA

S153881

Opinion of the Court by Liu, J.

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. 
PEOPLE v. RIVERA

Opinion of the Court by Liu, J.

2

I. FACTS

A. Guilt Phase

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. 

1. Prosecution Evidence

a. Prior Encounters Between Rivera and Officer 

Gray

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. 
PEOPLE v. RIVERA

Opinion of the Court by Liu, J.

3

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. 

b. Prior Uncharged Conduct

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 
PEOPLE v. RIVERA

Opinion of the Court by Liu, J.

4

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. 

c. The Shooting of McIntire and Bianchi on April 11, 

2004

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 
PEOPLE v. RIVERA

Opinion of the Court by Liu, J.

5

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 
PEOPLE v. RIVERA

Opinion of the Court by Liu, J.

6

McIntire shooting. Officer Smith explained that at the time, 

Rivera was one of just a few Hispanic men associated with the 

Merced Gangster Crips. 

d. The Shooting of Officer Gray on April 15, 2004

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, “Mother-fucker, why did — Why 

is he always bothering me? Why is he harassing me? Why don’t 

he just leave me alone?” 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 pulled over and 

searched at any time. 

Using Peterson’s cell phone, Rivera called Peterson’s 

father, Anton Martin. Rivera told Martin that Officer Gray was 

following him and asked if Martin could come “to where we were 

at.” Peterson noticed that Officer Gray turned on his vehicle’s 

overhead lights, and she told Rivera that Officer Gray was 

pulling them over. Rivera responded: “Why is this motherfucker . . . harassing me? Why won’t he leave me alone?” 

Peterson pulled over to the side of Glen Avenue. During opening 
PEOPLE v. RIVERA

Opinion of the Court by Liu, J.

7

argument, the prosecution offered three reasons Officer Gray 

may have stopped Rivera: (1) Rivera was a parolee; (2) when 

Officer Gray tried to stop Rivera a few weeks earlier, Rivera 

abandoned his girlfriend’s car and fled; and (3) Rivera was a 

suspect in the shooting of McIntire and Bianchi four days 

earlier. 

As Peterson was pulling the car to the side of the road, 

Rivera made a second phone call, this time to Clint Ward. 

Peterson was not sure whether Ward was a member of a gang 

but knew he was popular among members of the Merced 

Gangster Crips because he had a car and would drive them to 

The Hut and elsewhere. Rivera asked Ward to come get him. 

After pulling over, Peterson began to step out of the car. 

Officer Gray instructed her to go back inside. Peterson testified 

that she initially left the vehicle without thinking, not because 

she knew Rivera was planning to do something. Officer Gray 

approached the car, walked around to the passenger side, and 

asked Rivera to end his phone call. Rivera complied. Officer 

Gray asked when Rivera had last seen his parole officer, and 

Rivera replied: “On Monday.” Peterson heard someone over a 

police dispatch radio state that Rivera was clear of any 

outstanding warrants. Officer Gray asked Rivera to step out of 

the vehicle to be searched. Rivera did so, but before Officer Gray 

could search him, Rivera took off running. Officer Gray ran 

after him. Peterson heard Officer Gray say, “I don’t know why 

you’re running. You’re going to get caught anyway.” Peterson 

saw Rivera holding his right hand underneath his left arm next 

to his body as he ran and saw a gun flash. Peterson did not see 

a gun nor hear gunshots, but she saw Officer Gray fall to the 

ground. 
PEOPLE v. RIVERA

Opinion of the Court by Liu, J.

8

Yolanda Cabanas lived on Glen Avenue and was visiting a 

neighbor across the street on the evening of April 15, 2004. 

Cabanas testified that from her vantage point in front of her 

neighbor’s home, she noticed that an unmarked police car 

stopped a blue-green car on Glen Avenue. She saw a black 

woman get out of the car and heard an officer telling her to get 

back into the car. She heard the officer speaking with another 

man. Cabanas testified that she then saw a man, whom she 

identified in court as Rivera, running away. She saw him look 

over his left shoulder, pull out a gun from above his waistline, 

and turn 90 to 180 degrees to the right toward the officer. The 

officer did not have a weapon drawn. Cabanas testified that she 

saw Rivera turn with the gun in his hand and point the gun at 

Officer Gray. Cabanas heard a gunshot. Officer Gray kept 

running, and a few seconds later, Cabanas heard a second 

gunshot. Cabanas saw Officer Gray take three more steps 

toward Rivera. She thought Officer Gray was nearly close 

enough to “grab him” when he fell. 

Natasha Velasquez was driving with her boyfriend on 

Glen Avenue at the time these events took place. She testified 

that she saw a man turn his upper torso to the right and point 

a gun at a police officer who was chasing him. Velasquez heard 

two gunshots and saw the officer fall to the ground. Michael 

Clary and Donna Clary were at their home on the evening of 

April 15, 2004 and testified that they saw an unmarked police 

car stop a car outside their window, heard at least two gunshots, 

saw an officer “down,” and observed a young black woman 

standing near the car, speaking on a cell phone and crying. 

Michael Clary heard the woman say, “ ‘I didn’t think he would 

do it,’ ” and Donna Clary heard her say something like, “ ‘I can’t 

believe that he shot him.’ ” 
PEOPLE v. RIVERA

Opinion of the Court by Liu, J.

9

Officer Greene testified that at approximately 7:15 p.m., 

he heard Officer Gray say over the radio that he was making a 

traffic stop involving Rivera. When Officer Gray did not respond 

to status update requests, and after gunshots were reported in 

the area, Officer Greene was dispatched to Officer Gray’s 

location. Officer Greene found Officer Gray lying facedown on 

the sidewalk with a large gash on his forehead and a pool of 

blood under his head and upper torso. He was breathing and 

had a shallow pulse, but he did not speak. Upon removing his 

clothing to find other injuries, Officer Greene and Officer Smith, 

who arrived on the scene shortly thereafter, discovered a bullet 

hole in his right chest. 

An autopsy revealed that Officer Gray sustained two 

gunshot wounds: a nonfatal wound consistent with a bullet 

entering the back of his left arm approximately nine inches from 

the top of his shoulder and traveling 5.5 inches in muscle and 

soft tissue before exiting his arm; and a fatal wound consistent 

with a bullet entering the right side of his chest, traveling 

through a large artery and his lung, and striking his spinal 

column, thereby severing the spinal cord. The bullet that caused 

the first wound was never found, but the .45-caliber bullet 

responsible for the second wound was recovered from Officer 

Gray’s body, along with two expended shell casings recovered 

from the scene of the shooting. Forensic evidence revealed that 

the bullet and shell casings came from the same .45-caliber 

semiautomic pistol as the bullet and three expended shell 

casings recovered from the April 11, 2004 shooting. The gun 

used to shoot Officer Gray was not recovered. 

Sergeant Thomas Trinidad, Officer Gray’s supervisor in 

the gang unit, testified that Officer Gray had been leading an 

investigation into the Merced Gangster Crips’s drug trade, that 
PEOPLE v. RIVERA

Opinion of the Court by Liu, J.

10

the gang’s business boomed once Officer Gray was killed, and 

that the investigation had to start all over again because “no one 

[else] had the knowledge of the entire gang or their associates.” 

Sergeant Trinidad also testified that killing a police officer could 

“immensely” enhance a criminal street gang’s reputation, and 

that the Merced Gangster Crips encouraged the killing of police 

officers. He testified that Officer Gray’s death benefited and 

energized the gang, and described a gang member’s statement 

in a recorded phone conversation after the killing that 

“somebody had to . . . smoke his ass,” referring to Officer Gray. 

e. After the Shooting

Daniel Flores did not know Rivera personally but had seen 

him around the neighborhood. He testified that on the night of 

April 15, 2004, Rivera walked into Flores’s house, which was 

three blocks from Glen Avenue. Rivera told Flores to stay put 

and give him some clothes. Flores was not sure what was 

happening but was scared and felt that there might be a problem 

if he did not follow instructions. Flores gave Rivera a pair of 

sweatpants, which Rivera put on over the clothes he was already 

wearing. Flores’s roommate, Ricardo Munoz, arrived about five 

minutes later. Munoz did not know Rivera either, but when 

Rivera asked for clothes, Munoz removed the T-shirt he was 

wearing and gave it to him, hoping Rivera would leave the 

house. Rivera asked for a ride, but Munoz refused because he 

believed Rivera had done something wrong. Munoz suspected 

Rivera was hiding from the police because Rivera asked him 

“where the cops were at.” When Rivera again asked for a ride, 

Munoz refused once again, this time because there was a police 

car blocking his vehicle. Neither Flores nor Munoz saw a 

weapon on him. 
PEOPLE v. RIVERA

Opinion of the Court by Liu, J.

11

LaDonna Davis-Turner and her roommate, Dabreka 

Thompson, testified that a few days after the shooting, people 

familiar with Rivera pressured Davis-Turner and Thompson to 

pick Rivera up and drive him to San Diego. They gave DavisTurner money to do so. Davis-Turner and Thompson eventually 

agreed, drove Rivera to San Diego, and allowed him to stay at 

Davis-Turner’s apartment for a few days. During this time, 

Davis-Turner heard Rivera speak negatively about Officer Gray; 

at one point, she heard Rivera say, “I hate Officer Gray. I hate 

Officer Gray. Fuck Officer Gray.” After several days, DavisTurner and Thompson decided to contact the police. At some 

point, Davis-Turner, Thompson, and Rivera traveled to Merced, 

and the police instructed Davis-Turner and Thompson to meet 

up with Rivera under the pretense that they would drive him 

back to San Diego. Officers stopped the car and arrested Rivera. 

2. Defense Evidence

Defense counsel conceded during closing argument that 

Rivera shot and killed Officer Gray but argued that none of the 

evidence presented by the prosecution demonstrated beyond a 

reasonable doubt that the shooting was premeditated or gangrelated. Rather, the shooting was a “chance encounter.” 

Defense counsel presented testimony from Professor Jose Lopez, 

a gang expert, who concluded that the shooting “was not a gangrelated crime” because the events unfolded rapidly, leaving little 

time for Rivera to deliberate on whether killing Officer Gray 

would increase his gang’s reputation. Furthermore, killing a 

police officer would not boost the reputation of his gang, but 

instead would put both the killer and the gang in trouble by 

inviting a crackdown from police. Accordingly, Professor Lopez 

believed that Rivera was “just trying to escape.” 
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Opinion of the Court by Liu, J.

12

Defense counsel also argued that Rivera was not involved 

in the McIntire/Bianchi shooting, emphasizing that neither 

Bianchi nor McIntire could identify Rivera in lineups and were 

only now certain after having multiple conversations with law 

enforcement officers and seeing news stories focused on Rivera. 

The jury received its instructions, heard closing 

arguments, and began its deliberations on May 2, 2007. The 

following day, the jury found Rivera guilty of the first degree 

murder of Officer Gray and found true the special circumstance 

allegations that 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 that 

the murder involved the intentional killing of a peace officer who 

was engaged in the performance of his duties. The jury found 

not true the special circumstance allegation that the murder 

was carried out to further the activities of a criminal street gang. 

The jury also convicted Rivera of 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 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. 

B. Penalty Phase

The penalty phase of trial began on May 9, 2007. 

1. Prosecution Evidence

Rivera was previously convicted for unlawful possession of 

a firearm (Pen. Code, § 12021, subd. (e)) and possession for sale 
PEOPLE v. RIVERA

Opinion of the Court by Liu, J.

13

of cocaine base (Health & Saf. Code, § 11351.5). He had been 

adjudicated a ward of the juvenile court for two felony offenses: 

making criminal threats and brandishing a deadly weapon on 

one occasion and threatening school officials on another. 

The prosecution referred the jury to its verdicts finding 

Rivera guilty of firing three shots at McIntire and Bianchi, and

of murdering Officer Gray while he was performing his duties. 

The court instructed the jury that it could consider certain 

evidence if the jury found the allegations true beyond a 

reasonable doubt. Specifically, the court cited evidence from the 

guilt phase that Rivera previously had been convicted of 

possession of a firearm by a prohibited person and possession 

for sale of cocaine base, and uncharged conduct including two 

counts of shooting at an occupied vehicle, two counts of assault 

with a semiautomatic firearm, possession of a firearm by a felon, 

making criminal threats in violation of Penal Code section 422, 

threatening school employees in violation of Penal Code section 

71, assault with a firearm upon Marlon Bradley in violation of 

Penal Code section 248, and dissuading a witness and 

brandishing a firearm upon Larry Gonzalez and Adel 

Mohammed in violation of Penal Code sections 136.1 and 417. 

Sergeant Barbara Carbonaro testified that on April 18, 

2006, Rivera caused a disturbance at the jail by bailing water 

out of the toilet, resulting in flooding in his cell and the hallway. 

According to Sergeant Carbonaro, Rivera was angry because he 

could not be rehoused in the jail’s general population. She 

recalled that Rivera said his treatment was “unfair” and that he 

was in jail “just because some pig got killed.” Sergeant 

Carbonaro understood Rivera to be referring to Officer Gray. 
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Opinion of the Court by Liu, J.

14

The prosecution presented testimony from Mark Dossetti, 

retired chief of police for the City of Merced, that Officer Gray’s 

killing was the first of any Merced police officer while on duty. 

Chief Dossetti testified that Officer Gray was “loved and 

respected by everybody,” and that his death emotionally 

devastated the police department. Chief Dossetti and Sergeant 

Christopher Goodwin said that Gray was a motivated, 

professional officer and a good friend. Tony Gray, Officer Gray’s 

brother, testified that they had been close and that his death 

had caused Tony to attempt suicide twice and to take medication 

for depression. Landess Gray, Officer Gray’s daughter who was 

13 at the time of his death, testified that she thinks about him 

all the time and has sought psychiatric counseling for the anger, 

unhappiness, and confusion caused by her father’s death. 

Lonather Gray, Officer Gray’s mother, testified that he was a 

good child and that her life has been “horrible” since his death. 

Michelle Gray, Officer Gray’s widow, testified that he was a good 

husband and “the very best” father. The two were planning a 

10-year wedding anniversary trip when he died. 

2. Defense Evidence

Dr. Avak Howsepian, a medical doctor who interviewed 

Rivera and spoke with his family and relatives, testified that 

Rivera suffered from posttraumatic stress disorder, impulse 

control disorder not otherwise specified, and psychotic disorder. 

Dr. Howsepian attributed Rivera’s posttraumatic stress 

disorder to his witnessing, at age three or four, an accident in 

which a motorcyclist was killed. He opined that this trauma was 

exacerbated by Rivera’s fatherless childhood and his mother’s 

relationship with a man who beat her, causing Rivera to stay 

home from school to protect her. Rivera also had to protect his 

mother from his brother, Oswaldo, who suffered from mental 
PEOPLE v. RIVERA

Opinion of the Court by Liu, J.

15

health problems and physically attacked their mother on one 

occasion. Dr. Howsepian testified that at the time of the 

shooting Rivera suffered from a psychotic disorder that caused 

his perceptions to become detached from reality and caused 

Rivera to be deeply paranoid of Officer Gray. 

A number of witnesses testified to Rivera’s good character. 

Esperanza Yadira Rivera, Rivera’s niece, testified that Rivera 

was a father figure to her who talked with her about school, 

grades, and boys. Rivera continues to be a positive influence on 

her by writing letters from jail and encouraging her to get good 

grades and to stay out of trouble. Marcela Arroyo, Rivera’s 

younger sister, testified that Rivera had a positive impact on her 

while they were growing up and that he continues to encourage 

her to stay in school and to be a role model to the younger 

members of the family. Marcela Arroyo also testified that after 

her grandfather was in a car accident, Rivera saved his life by 

pulling him out of the car. Erika Rivera, Rivera’s mother, 

testified that money was tight while the children were growing 

up. Rivera’s father left when she was two months pregnant with 

Rivera. After he had a child of his own, Rivera looked for his 

own father but never found him. Erika Rivera also testified that 

her son tried to be a father figure to his siblings and was “very 

focused on his daughter,” with whom he remains in touch. 

II. ISSUES REGARDING GUILT AND SPECIAL 

CIRCUMSTANCES

A. Sufficiency of the Evidence for First Degree 

Murder 

Rivera contends that there was insufficient evidence to 

support a conviction for first degree murder committed with 

premeditation and deliberation. Upon a challenge to the 
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Opinion of the Court by Liu, J.

16

sufficiency of evidence for a jury finding, we “ ‘ “ ‘review the 

whole record in the light most favorable to the judgment below 

to determine whether it discloses substantial evidence — that 

is, evidence which is reasonable, credible, and of solid value —

such that a reasonable trier of fact could find the defendant 

guilty beyond a reasonable doubt.’ ” ’ ” (People v. Brooks (2017) 

3 Cal.5th 1, 57.) “The standard of review is the same in cases in 

which the prosecution relies mainly on circumstantial evidence.” 

(People v. Rodriguez (1999) 20 Cal.4th 1, 11; see People v. 

Stanley (1995) 10 Cal.4th 764, 792–793.) 

In People v. Anderson (1968) 70 Cal.2d 15, we observed 

that “[t]he type of evidence which this court has found sufficient 

to sustain a finding of premeditation and deliberation falls into 

three basic categories”: (1) facts about planning activity “prior 

to the actual killing which show[s] that the defendant was 

engaged in activity directed toward, and explicable as intended 

to result in, the killing”; (2) “facts about the defendant’s prior 

relationship and/or conduct with the victim from which the jury 

could reasonably infer a ‘motive’ to kill the victim”; and (3) “facts 

about the nature of the killing from which the jury could infer 

that the manner of killing was so particular and exacting that 

the defendant must have intentionally killed according to a 

‘preconceived design.’ ” (Id. at pp. 26–27, italics omitted.) 

“Since Anderson, we have emphasized that its guidelines are 

descriptive and neither normative nor exhaustive, and that 

reviewing courts need not accord them any particular weight.” 

(People v. Halvorsen (2007) 42 Cal.4th 379, 420.) 

Rivera argues there was insufficient evidence of each of 

the Anderson factors for the jury to convict him of first degree 

murder; rather, the killing resulted from an unplanned 

encounter initiated by Officer Gray’s stop. The Attorney 
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Opinion of the Court by Liu, J.

17

General counters that there was at least some evidence of all 

three factors and that although Rivera did not initiate the 

encounter, he premeditated and deliberated on the killing once 

he realized that Officer Gray was following his vehicle. We 

conclude there was sufficient evidence to sustain the conviction.

The prosecutor presented evidence that Rivera and Officer 

Gray “knew each other on sight” and that Rivera had an ongoing 

relationship from which the jury could reasonably infer a motive 

to kill. Officer Gray lectured Rivera about hanging around “with 

the people he was hanging around with” and warned Rivera that 

if Officer Gray “[saw] him doing anything, then, you know, he 

would come get him.” Peterson testified that on the night of the 

shooting, she stopped at a four-way stop sign, where both she 

and Rivera recognized Officer Gray stopping around the same 

time. Officer Gray turned his car around and followed Rivera 

and Peterson south. After noticing they were being followed, 

Rivera said, “Mother-fucker, why did — Why is he always 

bothering me? Why is he harassing me? Why don’t he just leave 

me alone?” Rivera then called Peterson’s father, Anton Martin, 

and told him that Officer Gray was following him. Rivera made 

a second phone call to Clint Ward, a popular contact among gang 

members because he had a car and would offer them rides. 

Peterson did not find it unusual for Rivera to call these two 

individuals, but she could not explain why he would need a ride. 

Peterson also recalled Rivera’s stepbrother, Salvador Arroyo, 

telling her that Arroyo remembered hearing Rivera say he was 

“going to do something to Gray because he was tired of [Gray]

harassing him,” but Arroyo testified that he did not remember 

this conversation. 

Based on this evidence, the jury could have reasonably 

concluded that Rivera made the phone calls and held onto his 
PEOPLE v. RIVERA

Opinion of the Court by Liu, J.

18

gun when he exited the vehicle because he was planning to kill 

Officer Gray. Furthermore, Rivera and Officer Gray’s history of 

past contentious encounters as well as Rivera’s comments to 

Peterson in the car provided evidence of a prior relationship and 

conduct from which the jury could have inferred a motive to kill 

Officer Gray. (See People v. Cruz (1980) 26 Cal.3d 233, 245 

[“Defendant’s pent-up resentment toward his victim[] 

establishes the prior relationship from which the jury 

reasonably could infer a motive for the killing[].”].) Taken 

together, the evidence is sufficient to support the jury’s finding 

that Rivera committed a premeditated and deliberate murder.

B. Use of CALJIC No. 8.71 

Rivera contends that the trial court gave a flawed version 

of CALJIC No. 8.71 that suggested a juror was to give the 

defendant the benefit of the doubt as to the degree of the offense 

only if all jurors unanimously had a reasonable doubt as to the 

degree. Rivera argues that the alleged instructional error 

deprived him of the benefit of the judgment of individual jurors 

and diminished the prosecutor’s burden of proof, thereby 

violating his rights under state law and under the Fifth, Sixth, 

Eighth, and Fourteenth Amendments to the U.S. Constitution. 

The trial court gave the following instruction to the jury: 

“If you are convinced beyond a reasonable doubt and 

unanimously agree that the crime of murder has been 

committed by the defendant, but you unanimously agree that 

you have a reasonable doubt whether the murder was of the first 

or of the second degree, you must give the defendant the benefit 

of that doubt and return a verdict fixing the murder as of the 

second degree.” The instruction tracks the version of CALJIC 

No. 8.71 as of 2007, when the trial occurred. In 2011, we 
PEOPLE v. RIVERA

Opinion of the Court by Liu, J.

19

“conclude[d] the better practice is not to use [this version of 

CALJIC No. 8.71], as the instruction[] carr[ies] at least some 

potential for confusing jurors about the role of their individual 

judgments in deciding between first and second degree 

murder . . . .” (People v. Moore (2011) 51 Cal.4th 386, 411 

(Moore).) Following our decision in Moore, CALJIC No. 8.71 was 

amended to read: “If any juror is convinced beyond a reasonable 

doubt that the crime of murder has been committed by a 

defendant, but has a reasonable doubt whether the murder was 

of the first or of the second degree, that juror must give 

defendant the benefit of that doubt and find that the murder is 

of the second degree.”

We review a claim of instructional error de novo. (People 

v. Cole (2004) 33 Cal.4th 1158, 1210.) The challenged 

instruction is considered “in the context of the instructions as a 

whole and the trial record to determine whether there is a 

reasonable likelihood the jury applied the instruction in an 

impermissible manner.” (People v. Houston (2012) 54 Cal.4th 

1186, 1229 (Houston).) 

We conclude that the use of CALJIC No. 8.71 was “not 

erroneous . . . when considered with the rest of the charge to the 

jury.” (People v. Salazar (2016) 63 Cal.4th 214, 248 (Salazar).) 

Here, the trial court also instructed the jury with CALJIC No. 

8.74: “Before you may return a verdict in this case, you must 

agree unanimously not only as to whether the defendant is 

guilty or not guilty, but also, if you should find him guilty of an 

unlawful killing, you must agree unanimously as to whether he 

is guilty of murder of the first degree or murder of the second 

degree.” CALJIC No. 8.74 explains that there must be 

unanimous agreement for the jury to convict on first degree 
PEOPLE v. RIVERA

Opinion of the Court by Liu, J.

20

murder and clarifies that a jury could not convict Rivera of the 

greater charge if there is no such agreement.

Furthermore, the trial court instructed the jury with 

CALJIC No. 17.40: “The People and the defendant are entitled 

to the individual opinion of each juror. Each of you must 

consider the evidence for the purpose of reaching a verdict if you 

can do so. Each of you must decide the case for yourself but 

should do so only after discussing the evidence and instructions 

with the other jurors. [¶] Do not hesitate to change an opinion 

if you are convinced it is wrong. However, do not decide any 

question in a particular way because a majority of the jurors or 

any of them favor that decision. Do not decide any issue in this 

case by the flip of a coin or by any other chance determination.” 

Such an instruction emphasizes that jurors must each decide 

guilt for themselves and mitigates the concern that jurors would 

abandon their individual judgments regarding reasonable doubt 

to first degree murder because of the instruction using former 

CALJIC No. 8.71. (See People v. Gunder (2007) 151 Cal.App.4th 

412, 424–425 [finding no reversible error where, in addition to 

CALJIC No. 8.71, the trial court gave an instruction nearly 

identical to CALJIC No. 17.40]; People v. Pescador (2004) 119 

Cal.App.4th 252, 255–258 [finding no reversible error where the 

trial court instructed with CALJIC Nos. 17.11 (stating that if 

the jury found the defendant guilty, but reasonable doubt 

existed as to whether the murder was of the first or second 

degree, the jury must find the defendant guilty of murder in the 

second degree), 17.40, and 8.50 (describing the difference 

between murder and manslaughter) in addition to CALJIC No. 

8.71].) These two instructions mitigated any possible confusion 

from the use of CALJIC No. 8.71. (See People v. Buenrostro
PEOPLE v. RIVERA

Opinion of the Court by Liu, J.

21

(2018) 6 Cal.5th 367, 428–430; People v. Gomez (2018) 6 Cal.5th 

243, 302.)

There is also no indication in the record that the jury was 

confused by the instruction. The jury submitted one note to the 

judge requesting copies of several Penal Code sections or an 

interpretation from the court about the statutory language of 

one of the special circumstances and one of the enhancements 

alleged. The trial court directed the jury to its earlier 

instructions and indicated that if the jury needed further 

explanation, the court could address that later. The jury did not 

inquire further.

Based on the collective instructions given regarding the 

requirement of unanimity and individual decisionmaking, and 

given the lack of any indication that the jury was confused or 

misled into returning the greater verdict of first degree murder 

despite a juror having a reasonable doubt of such a finding, we 

conclude that “[n]o logical reading” of CALJIC No. 8.71 would 

compel a first degree murder verdict under the circumstances 

present here. (Salazar, supra, 63 Cal.4th at p. 247.)
PEOPLE v. RIVERA

Opinion of the Court by Liu, J.

22

C. Acquittal-first Instruction on First Degree 

Murder 

Rivera contends that the CALJIC No. 8.71 also violated 

his rights under state law and under the Fifth, Sixth, Eighth, 

and Fourteenth Amendments to the U.S. Constitution because 

it was an acquittal-first instruction that required the jury to find 

appellant not guilty of first degree murder before it could return 

a verdict on second degree murder. Rivera concedes that we 

have held that “when the jury returns a verdict on [a] lesser 

included offense, it must also render a corresponding verdict of 

acquittal on the greater offense.” (People v. Fields (1996) 13 

Cal.4th 289, 310.) But he argues that we should reconsider this 

holding because it precludes full jury consideration of lesser 

included offenses in violation of his constitutional rights. 

“Under the acquittal-first rule, a trial court may direct the 

order in which jury verdicts are returned by requiring an 

express acquittal on the charged crime before a verdict may be 

returned on a lesser included offense.” (People v. Bacon (2010) 

50 Cal.4th 1082, 1110.) We have observed that an acquittal-first 

instruction must not prohibit the jury from considering or 

deliberating on the lesser included offense before returning a 

verdict on the greater offense. (People v. Kurtzman (1988) 46 

Cal.3d 322, 330–331.)

The instruction with which Rivera takes issue here 

(CALJIC No. 8.71) does not directly address the order-ofdeliberations issue and therefore does not provide occasion to 

reconsider our prior holdings. CALJIC No. 8.71 simply states 

that if the jury has reasonable doubt about whether the murder 

was of the first or second degree, the jury “must give defendant 

the benefit of that doubt and find that the murder is of the 
PEOPLE v. RIVERA

Opinion of the Court by Liu, J.

23

second degree.” Unlike other instructions that the trial court 

did not employ in this case, CALJIC No. 8.71 does not instruct 

the jury that it must acquit a defendant of a greater offense 

before being able to find the defendant guilty of a lesser included 

offense. (Compare CALJIC No. 8.75 [“The court cannot accept a 

verdict of second degree murder unless the jury also 

unanimously finds and returns a signed verdict form of not 

guilty as to murder of the first degree.”].) If anything, the use of 

CALJIC No. 8.71 reduced the likelihood that the jury failed to 

consider the lesser included offense because the instruction 

expressly reminded the jury it may convict the defendant of 

second degree murder in lieu of first degree murder and 

emphasized that any doubt should be resolved in the defendant’s 

favor. CALJIC No. 8.71 therefore does not implicate the 

acquittal-first rule nor pose any of the potential constitutional 

concerns raised by such a rule.

D. Failure To Instruct That Subjective 

Provocation May Reduce Premeditated First 

Degree Murder to Second Degree Murder 

Rivera contends that the trial court committed prejudicial 

error when it failed to sua sponte instruct the jury that 

subjective provocation can reduce premeditated murder to 

second degree murder in this case because the evidence of 

premeditation and deliberation was weak, and because 

substantial evidence tended to show the shooting was in direct 

response to appellant’s perception that the traffic stop and 

search were part of a pattern of harassment. 

Provocation may indeed reduce murder from first to 

second degree. (People v. Thomas (1945) 25 Cal.2d 880, 903 

[provocation might “be adequate to negative or raise a 
PEOPLE v. RIVERA

Opinion of the Court by Liu, J.

24

reasonable doubt as to the idea of premeditation or deliberation, 

leaving the homicide as murder of the second degree”].) But an 

instruction that provocation may be sufficient to raise 

reasonable doubt about premeditation or deliberation, such as 

CALJIC No. 8.73 or CALCRIM No. 522, is a pinpoint instruction 

to which a defendant is entitled only upon request where 

evidence supports the theory. (People v. Rogers (2006) 39 

Cal.4th 826, 877–880.) The trial court is not required to give 

such an instruction sua sponte. (Id. at pp. 878–879 [“Because 

CALJIC No. 8.73 relates the evidence of provocation to the 

specific legal issue of premeditation and deliberation, it is a 

‘pinpoint instruction’ . . . and need not be given on the court’s 

own motion.”].) In this case, Rivera did not make a request for 

an instruction on provocation. The trial court did not err by 

failing to so instruct the jury.

E. Instruction on Special Circumstance Allegation 

of Murder To Prevent Arrest or Escape from 

Lawful Custody 

Rivera contends the trial court erred by instructing the 

jury that the special circumstance under Penal Code section 

190.2, subdivision (a)(5) could be found true upon a finding that 

either (1) the murder was committed to avoid or prevent a lawful 

arrest, or (2) the murder was committed to perfect or attempt to 

perfect an escape from lawful custody. Rivera asserts that the 

second theory is invalid because at the time of the murder, he 

was neither under arrest nor charged with an offense, nor was 

he in jail or prison. Rivera contends that the failure to 

adequately instruct the jury upon matters relating to proof of 

any element of the charge violates his Fifth, Sixth, and 

Fourteenth Amendment rights under the federal Constitution, 
PEOPLE v. RIVERA

Opinion of the Court by Liu, J.

25

as well as his rights to trial by jury and due process under article 

I, sections 15 and 16 of the California Constitution.

As noted, we review a claim of instructional error de novo. 

(People v. Cole, supra, 33 Cal.4th at p. 1210.) We consider the 

challenged instruction in the context of the instructions and 

record as a whole to ascertain whether there is a reasonable 

likelihood the jury impermissibly applied the instruction. 

(Houston, supra, 54 Cal.4th at p. 1229.) 

“The nature of th[e] harmless error analysis depends on 

whether a jury has been presented with a legally invalid or a 

factually invalid theory.” (People v. Perez (2005) 35 Cal.4th 

1219, 1233 (Perez).) A legally inadequate theory involves a 

“mistake about the law” that the jury would generally have no 

reason to know, such as if “ ‘the action in question is protected 

by the Constitution, is time barred, or fails to come within the 

statutory definition of the crime.’ ” (People v. Guiton (1993) 4 

Cal.4th 1116, 1125.) A factually inadequate theory involves a 

mistake about a fact that the “jury is fully equipped to detect” 

(id. at p. 1129) or a theory that “while legally correct, has no 

application to the facts of the case” (Perez, at p. 1233). In cases 

of factual inadequacy, the error is one of state law, and “[w]e will 

affirm ‘unless a review of the entire record affirmatively 

demonstrates a reasonable probability that the jury in fact 

found the defendant guilty solely on the unsupported theory.’ ” 

(Id. at p. 1233, quoting Guiton, at p. 1130.) 

The special circumstance in Penal Code section 190.2, 

subdivision (a)(5) provides: “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.” The 

trial court accordingly instructed the jury with CALJIC No. 
PEOPLE v. RIVERA

Opinion of the Court by Liu, J.

26

8.81.5: “To find that the special circumstance referred to in 

these instructions as murder to prevent arrest or to perfect an 

escape is true, the following facts must be proved: [¶] First, the 

murder was committed for the purpose of avoiding or preventing 

a lawful arrest; or second, the murder was committed to perfect 

or attempt to perfect an escape from lawful custody. . . .” There 

is no mistake of law in the instruction; CALJIC No. 8.81.5 tracks 

the language of the Penal Code. But, as the Attorney General 

concedes, Rivera was not in custody at the time of the murder 

and could not have been perfecting or attempting to perfect an

escape from lawful custody. We accept the Attorney General’s 

concession that the alternate theory of murder for the purpose 

of perfecting or attempting to perfect an escape from lawful 

custody was a factually inadequate theory. We therefore must 

assess whether it was reasonably probable that the jury found 

Rivera guilty solely on the unsupported theory. (Perez, supra, 

35 Cal.4th at p. 1233.) 

The record as a whole does not suggest that the jury relied 

on the unsupported theory. It is undisputed that Officer Gray 

stopped the car and asked Rivera, who was on parole, to exit the 

car. It is also undisputed that at that point, Rivera ran away 

while possessing a gun that he later used during the pursuit. 

During closing argument, the prosecutor argued that the jury 

should find the special circumstance true because “the 

defendant killed Officer Gray who was about to make a lawful 

arrest.” The jury found that Rivera intentionally killed Officer 

Gray while he was engaged in the performance of his duties or 

in retaliation for the performance of his duties. The jury also 

found Rivera guilty of being a felon in possession of a firearm 

while running away from Officer Gray. The underlying facts 

and convictions indicate there was ample evidence that the jury 
PEOPLE v. RIVERA

Opinion of the Court by Liu, J.

27

relied on the first theory — that the murder was committed for 

the purpose of avoiding or preventing a lawful arrest — to find 

true the special circumstance in rendering its verdict. It was 

thus not reasonably probable, based on the record as a whole, 

that the jury found Rivera guilty on the unsupported theory of 

escaping from custody. We therefore affirm the jury’s special 

circumstance finding.

F. Peace-officer-killing Special Finding Does Not 

Apply to First Degree Murder 

Rivera initially contended that the peace-officer-killing 

enhancement must be stricken because Penal Code section 190, 

subdivision (c) provides that the enhancement only applies to 

second degree murder. The Attorney General concedes that this 

enhancement only applies to second degree murder but argues 

that we need not take action because the trial court already set 

aside the special finding. In response, Rivera agrees and 

withdraws the argument as moot. Our review of this claim is 

therefore unnecessary.

G. Sufficiency of the Evidence for Gang-related 

Enhancements for First Degree Murder and 

Felon-in-possession-of-a-firearm Convictions 

Rivera argues that the evidence is insufficient to sustain 

the jury’s true finding that his convictions for murder and 

unlawful possession of a firearm by a felon were committed for 

the benefit of, at the direction of, or in association with a 

criminal street gang for the purpose of a gang-related 

enhancement. (Pen. Code, § 186.22, subd. (b)(1).) 

“We review the sufficiency of the evidence to support an 

enhancement using the same standard we apply to a conviction.” 

(People v. Wilson (2008) 44 Cal.4th 758, 806.) “We presume 
PEOPLE v. RIVERA

Opinion of the Court by Liu, J.

28

every fact in support of the judgment the trier of fact could have 

reasonably deduced 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 reasonably be reconciled with a 

contrary finding.” (People v. Albillar (2010) 51 Cal.4th 47, 60

(Abillar).) The standard is the same whether the prosecution 

relies on direct or circumstantial evidence. (People v. Valencia

(2008) 43 Cal.4th 268, 290 (Valencia).)

Penal Code section 186.22, subdivision (b)(1)’s gang 

enhancement applies to “any person” convicted of a number of 

enumerated felonies, including murder and unlawful possession 

of a firearm by a felon, that were (1) “ ‘committed for the benefit 

of, at the direction of, or in association with any criminal street 

gang,’ ” and (2) “ ‘with the specific intent to promote, further, or 

assist in any criminal conduct by gang members.’ ” (See People 

v. Livingston (2012) 53 Cal.4th 1145, 1170–1171 [considering 

sufficiency of evidence for each prong of Pen. Code § 186.22, 

subd. (b)(1)].) “Not every crime committed by gang members is 

related to a gang” for purposes of the enhancement (Albillar, 

supra, 51 Cal.4th at p. 60), but the enhancement applies “when 

a defendant has personally committed a gang-related felony 

with the specific intent to aid members of that gang” (id. at 

p. 68).

In this case, the prosecution presented evidence that 

Rivera was an active member of the Merced Gangster Crips: He 

participated in and had previously pled guilty to offenses related 

to the gang’s drug trade; he bore gang tattoos that referred to 

the Merced Gangster Crips; and he possessed firearms 

associated with the gang. Rivera contacted several individuals 

who were either members of the gang or “hung around” with 
PEOPLE v. RIVERA

Opinion of the Court by Liu, J.

29

known members before and after the murder, presumably to 

facilitate his escape. (See People v. Abilez (2007) 41 Cal.4th 472, 

508 [subsequent conduct may constitute circumstantial 

evidence of intent at the time of the offense].)

The prosecution also presented evidence that Officer Gray 

had been leading an investigation into the Merced Gangster 

Crips’s drug trade, and that Rivera had personally interacted 

with Officer Gray in the course of his investigation of a shooting 

involving another gang member: During a parole check, Officer 

Gray and another officer asked Rivera about the other gang 

member and searched his home for any information about the 

whereabouts of the other gang member. Officer Gray also 

lectured Rivera about hanging around “with the people he was 

hanging around with.” Finally, although the gun used to kill 

Officer Gray was not recovered, forensic evidence of the bullet 

recovered from Officer Gray’s body and shell casings found at 

the scene indicated that they came from the same .45-caliber 

semiautomatic firearm used in the gang-related McIntire 

shooting three days earlier. A reasonable jury could infer from 

this evidence that Rivera specifically intended the murder to 

benefit and promote the gang.

H. Failure To Instruct Jury on All Elements of 

Assault for Purposes of Offense of Assault with 

a Semiautomatic Firearm 

Rivera contends that the failure to instruct on the 

elements of “assault” created a structural error requiring per se 

reversal of the convictions of assault with a semiautomatic 

firearm against McIntire and Bianchi in counts V and VI. The 

trial court instructed the jury in the language of CALJIC No. 

9.02.1: “Defendant is accused in Counts V and VI of having 
PEOPLE v. RIVERA

Opinion of the Court by Liu, J.

30

violated Section 245 subdivision (b) of the Penal Code, a crime. 

Every person who commits an assault upon the person of 

another with a semiautomatic firearm is guilty of a violation of 

Penal Code Section 245[,] subdivision (b), a crime. [¶] In order 

to prove this crime, each of the following elements must be 

proved: [¶] First, a person was assaulted; [¶] Second, the 

assault was committed with a semiautomatic firearm.” But the 

trial court did not offer CALJIC No. 9.00 or a similar instruction 

defining assault. The Attorney General concedes that the trial 

court erred by not defining assault but argues that the error was 

not structural and does not require reversal. We conclude the 

error was harmless beyond a reasonable doubt.

“The trial court has a sua sponte duty to instruct the jury 

on the essential elements of the charged offense.” (People v. 

Merritt (2017) 2 Cal.5th 819, 824.) Failure to do so is a “very 

serious constitutional error because it threatens the right to a 

jury trial that both the United States and California 

Constitutions guarantee. (U.S. Const., 6th Amend.; Cal. Const., 

art. I, § 16.) All criminal defendants have the right to ‘a jury 

determination that the defendant is guilty of every element of 

the crime with which he is charged, beyond a reasonable 

doubt.’ ” (Ibid.) The error is reversible unless “it is clear beyond 

a reasonable doubt that a rational jury would have rendered the 

same verdict absent the error.” (Id. at p. 831.) 

Here, the jury found, upon proper instruction, that Rivera 

personally used a firearm in violation of Penal Code section 

12022.5, subdivision (a)(1), which required a finding that Rivera 

“intentionally displayed a firearm in a menacing manner, 

intentionally fired it, or intentionally struck or hit a human 

being with it” as to each victim. That finding alone may be 

sufficient to establish assault. (People v. McMakin (1857) 8 Cal. 
PEOPLE v. RIVERA

Opinion of the Court by Liu, J.

31

547, 548 [observing that “presenting” a gun at person within its 

range can constitute assault]; People v. Laya (1954) 123 

Cal.App.2d 7, 16 [“The mere pointing of a gun at a victim 

constitutes an assault with a deadly weapon, whether or not it 

is fired at all.”].) But in this case, the jury also found, upon 

proper instruction, that Rivera was guilty of shooting at an 

occupied vehicle in violation of Penal Code section 246, which 

requires “[a] person discharged a firearm at an occupied vehicle” 

and “the discharge of the firearm was willful and malicious.” 

These offenses encompass the elements of assault. Because the 

trial court provided other instructions and the jury’s findings 

necessarily addressed the elements of assault, we conclude the 

trial court’s failure to give the instruction was harmless.

I. Allegations of Prosecutorial Misconduct During 

Guilt-phase Closing Argument 

Rivera contends that the prosecutor committed four 

instances of misconduct during his closing argument: 

(1) suggesting unethical conduct by the defense expert witness; 

(2) arguing the existence of facts not admitted into evidence to 

bolster the prosecution’s case; (3) vouching for witnesses, 

thereby bolstering the testimony in support of the prosecution’s 

case; and (4) appealing to passion and fear and, in doing so, 

misstating the law on first degree premeditated murder. These 

instances, Rivera argues, rendered the trial fundamentally 

unfair and denied him his state and federal rights to due 

process, effective assistance of counsel, and a fair trial.

“ ‘A prosecutor who uses deceptive or reprehensible 

methods to persuade the jury commits misconduct, and such 

actions require reversal under the federal Constitution when 

they infect the trial with such “ ‘unfairness as to make the 
PEOPLE v. RIVERA

Opinion of the Court by Liu, J.

32

resulting conviction a denial of due process.’ ” ’ ” (People v. 

Friend (2009) 47 Cal.4th 1, 29 (Friend), quoting Darden v. 

Wainwright (1986) 477 U.S. 168, 181.) “ ‘Under state law, a 

prosecutor who uses such methods commits misconduct even 

when those actions do not result in a fundamentally unfair 

trial.’ ” (Friend, at p. 29, quoting People v. Alfaro (2007) 41 

Cal.4th 1277, 1328.) “When a claim of misconduct is based on 

the prosecutor’s comments before the jury, ‘ “the question is 

whether there is a reasonable likelihood that the jury construed 

or applied any of the complained-of remarks in an objectionable 

fashion.” ’ ” (Id. at p. 29, quoting People v. Smithey (1999) 20 

Cal.4th 936, 960.) Prosecutorial misconduct can result in 

reversal under state law if there was a “reasonable likelihood of 

a more favorable verdict in the absence of the challenged 

conduct” and under federal law if the misconduct was not 

“harmless beyond a reasonable doubt.” (People v. Cook (2006) 

39 Cal.4th 566, 608 (Cook).) Where the defendant does not 

contemporaneously object to alleged misconduct, we generally 

decline to review the claim on appeal unless a timely admonition 

could not have cured the harm. (People v. Pensinger (1991) 52 

Cal.3d 1210, 1251 (Pensinger); Friend, at p. 29 [“ ‘In order to 

preserve a claim of misconduct, a defendant must make a timely 

objection and request an admonition; only if an admonition 

would not have cured the harm is the claim of misconduct 

preserved for review.’ ”].) 

Rivera objected only to the first three instances of alleged 

misconduct, and he only did so outside the presence of the jury 

after the closing argument was over. His claims are therefore 

untimely and forfeited. (Pensinger, supra, 52 Cal.3d at p. 1251; 

Friend, supra, 47 Cal.4th at p. 29.) But in any event, each 
PEOPLE v. RIVERA

Opinion of the Court by Liu, J.

33

instance of alleged misconduct either did not constitute 

misconduct or was harmless.

1. Suggesting Unethical Conduct by the Defense Expert 

Witness

Rivera argues the prosecutor improperly suggested that 

defense expert Professor Lopez engaged in unethical conduct 

when the prosecutor said to the jury: “We would suggest that 

based on the flawed manner in which the defense expert . . . 

conducted his research, you can completely disregard the 

testimony that this murder was not committed for the benefit of 

the street gang. Didn’t talk to any other than one member of 

[the Merced Gangster Crips], spent two hours with the 

defendant, didn’t talk to Sergeant Trinidad, didn’t talk to any 

Merced police officers, get the lay of the land. That’s not 

research. That’s not an investigation. That’s taking money and 

trying to arrive at a conclusion that the money was paid to 

secure.” 

“Argument may not denigrate the integrity of opposing 

counsel, but harsh and colorful attacks on the credibility of 

opposing witnesses are permissible. [Citations.] Thus, counsel 

is free to remind the jurors that a paid witness may accordingly 

be biased and is also allowed to argue, from the evidence, that a 

witness’s testimony is unbelievable, unsound, or even a patent 

‘lie.’ ” (People v. Arias (1996) 13 Cal.4th 92, 162.) We have 

previously concluded that discrediting a defense witness does 

not constitute misconduct provided that the “prosecutor’s 

argument merely focused on the evidentiary reasons why [an 

expert’s opinions] could not be trusted.” (Ibid.; see also People 

v. Blacksher (2011) 52 Cal.4th 769, 838 [concluding prosecutor’s 

claim that a defense witness was not useful to defendant’s case 
PEOPLE v. RIVERA

Opinion of the Court by Liu, J.

34

“was permissible comment on the evidence”].) Here, the 

prosecutor’s remarks insinuated that the witness was paid and 

might be biased. The prosecutor also suggested that the defense 

witness was incredible, relying on his cross-examination of the 

witness that tended to suggest the witness’s research 

methodology was lacking. Neither this approach nor the 

prosecutor’s statement in closing argument constituted 

misconduct.

2. Arguing the Existence of Facts Not Admitted into 

Evidence

In his closing argument, the prosecutor said to the jurors: 

“Members of the Jury, this case has gone faster than we 

anticipated because frankly, and sadly, the facts just aren’t very 

complex. Many of the witnesses we could have called would 

have been repetitive, and Mr. Bacciarini and I are completely 

satisfied that you understand what happened in both shootings. 

There isn’t much more to add.” Rivera argues that the 

prosecutor committed misconduct by referring to facts not 

admitted into evidence. “ ‘[S]tatements of facts not in evidence 

by the prosecuting attorney in his argument to the jury 

constitute misconduct.’ ” (People v. Bolton (1979) 23 Cal.3d 208, 

212.) The Attorney General concedes that the prosecutor’s 

statement that he could have called other witnesses was 

improper but argues that the error was harmless. We agree.

Whether considered under this state’s “reasonable 

likelihood of a more favorable verdict” standard or the federal 

“harmless beyond a reasonable doubt” standard, the error here 

was harmless. (Cook, supra, 39 Cal.4th at p. 608.) It is true that 

the prosecutor was apparently attempting to bolster the

credibility of the admitted evidence by suggesting other 
PEOPLE v. RIVERA

Opinion of the Court by Liu, J.

35

evidence existed to corroborate it. But the prosecutor’s 

statement was an isolated instance in a closing statement that 

otherwise focused on admitted evidence, which was quite strong 

in favor of Rivera’s guilt. Furthermore, the jury was instructed 

to determine the facts “from the evidence received in this trial 

and not from any other source” and that “[s]tatements made by 

the attorneys during the trial are not evidence.” For these 

reasons, we conclude the error was harmless.

3. Vouching for Witnesses

Rivera also argues that that by referring to unadmitted 

evidence and stating that he was “completely satisfied that you 

[the jury] understand what happened in both shootings,” the 

prosecutor committed misconduct by vouching for the witnesses. 

“While a ‘prosecuting attorney has a wide range in which to 

state his views as to what the evidence shows and the 

conclusions to be drawn therefrom’ [citation], and in his 

argument to the jury the prosecutor may comment upon the 

credibility of witnesses ‘in the light of all the evidence in the 

case’ [citations], ‘[i]t is misconduct for a prosecuting attorney to 

express his personal belief as to the reliability of a witness.’ ” 

(People v. Perez (1962) 58 Cal.2d 229, 245.) “Impermissible 

‘vouching’ may occur where the prosecutor places the prestige of 

the government behind a witness through personal assurances 

of the witness’s veracity or suggests that information not 

presented to the jury supports the witness’s testimony.” (People 

v. Fierro (1991) 1 Cal.4th 173, 211.) “Such an expression of 

personal opinion is misconduct whether the prosecutor is 

seeking thereby to bolster testimony which was in support of the 

People’s case [citations], or whether the People’s representative 

is attempting to discredit the credibility or reliability of 
PEOPLE v. RIVERA

Opinion of the Court by Liu, J.

36

witnesses testifying in support of the defendant.” (Perez, 58 

Cal.2d at p. 246.) 

The prosecutor did not refer to any particular witness nor 

make assurances of the truth of their testimony. His brief 

allusion to facts not in evidence did not have the prejudicial 

effect of bolstering the testimony of any particular witness. The 

prosecutor’s statement therefore did not constitute 

impermissible vouching of a witness.

4. Appealing to Passion and Fear and Misstating the 

Law on First Degree Premeditated Murder

Rivera argues that the prosecutor improperly appealed to 

passion and fear by making several statements during closing 

argument. First, the prosecutor said to the jury: “On the 

homefront, one of the most important acts of citizenship that 

any person can be asked to perform is now being performed by 

you in your service as jurors; and more so, in a murder trial in 

which the penalty being sought is death.” In rebuttal, the 

prosecutor urged the jury to “bring a verdict into this courtroom 

that honors its more than 150-year tradition of justice.” Second, 

the prosecutor argued: “[G]angsters don’t deserve seconddegree murder because they already come from a murder 

mindset. Murder is already part of their culture. It was already 

part of the defendant’s lifestyle, part of who he is.” On rebuttal, 

the prosecutor also said: “Gang members are ready to kill. It’s 

part of their culture; it’s what they do. They commit acts of 

violence.” Finally, the prosecutor repeated the initial 

statement: “Gang members, like this prosecutor said, don’t get 

second-degree murder, they don’t deserve second-degree 

murder.” Rivera argues these statements both appealed to the 

jurors’ passions by bringing the potential death penalty to bear 
PEOPLE v. RIVERA

Opinion of the Court by Liu, J.

37

during the guilt phase and by encouraging the jury to allow a 

fear of gangs to influence their evaluation of the case. He also 

contends the prosecutor’s comments misstated the law 

regarding premeditated first degree murder.

“A prosecutor is allowed to make vigorous arguments and 

may even use such epithets as are warranted by the evidence, 

as long as these arguments are not inflammatory and 

principally aimed at arousing the passion or prejudice of the 

jury.” (Pensinger, supra, 52 Cal.3d at p. 1251.) “[I]t is improper 

for a prosecutor to appeal to the passion or prejudice of the jury.” 

(People v. Cornwell (2005) 37 Cal.4th 50, 92 (Cornwell).) “[I]t is 

misconduct for a prosecutor, during argument, to misstate the 

law [citation], or to invite or encourage the jury to do what the 

law prohibits.” (People v. Whalen (2013) 56 Cal.4th 1, 77.) 

Even assuming Rivera did not forfeit his claim concerning 

the statements about jury service by failing to timely object, we 

conclude that these statements do not constitute misconduct. 

The prosecutor’s statement merely reminded the jurors about 

the importance of the civic duty in which they were engaged. It 

did not ask the jury to act on the basis of fear or to decide the 

case in a particular way in light of that duty. (See Cornwell, 

supra, 37 Cal.4th at pp. 92–93 [finding no prosecutorial 

misconduct for prosecutor’s appeal to “ ‘the duty’ ” that is 

“ ‘essential to our society’ ” where “the prosecutor’s argument 

did not urge the members of the jury to act on the basis of their 

fear of chaos and crime in the community, but to act with an 

understanding of the importance of law in the abstract”].) 

The prosecutor’s statements that gang members do not 

“deserve second-degree murder” and “don’t get second-degree 

murder” are more troubling. Being affiliated with a gang does 
PEOPLE v. RIVERA

Opinion of the Court by Liu, J.

38

not make a defendant deserving of conviction for first degree 

murder. The mental state required for first degree murder “is 

uniquely subjective and personal. It requires more than a 

showing of intent to kill; the killer must act deliberately, 

carefully weighing the considerations for and against a choice to 

kill before he or she completes the acts that caused the death.” 

(People v. Chiu (2014) 59 Cal.4th 155, 166.) To suggest that a 

gang member deserves to be convicted of first degree murder or 

may be convicted of only first degree murder rather than second 

degree murder is a misstatement of the law.

But Rivera did not object to the prosecutor’s statements 

implying that gang members deserve to be convicted of first

degree murder. Rivera therefore forfeited this claim. (See 

Pensinger, supra, 52 Cal.3d at p. 1251; Friend, supra, 47 Cal.4th 

at p. 29.) 

J. Review of Sealed Transcripts of Trial Court’s 

Pitchess Hearings and Withholding of Relevant 

Documents

Rivera requests that we independently review the sealed 

record of the trial court discovery rulings pursuant to Pitchess v. 

Superior Court (1974) 11 Cal.3d 531 in order to determine 

whether the trial court’s in camera review process complied with 

the law. We have done so and conclude that the trial court did 

not abuse its discretion.

Before trial, Rivera filed a Pitchess motion seeking to 

discover documents from the prosecution concerning Officer 

Gray — in particular, evidence or complaints of “excessive force, 

aggressive conduct, unnecessary or excessive violence, 

unnecessary force, planting of evidence, false arrest, false 

statements in reports, false claims of probable cause, detaining 
PEOPLE v. RIVERA

Opinion of the Court by Liu, J.

39

people without legal cause, interfering in the domestic 

relationships of citizens, or any other evidence of or complaints 

of dishonesty . . . .” Rivera later filed an amended motion 

containing appended police reports. The trial court found good 

cause to conduct an in camera review of Officer Gray’s personnel 

file. After conducting an in camera review on June 6, 2005, the 

trial court granted the motion in part and denied it in part. The 

City of Merced moved for reconsideration and requested that the 

court reopen the in camera review to allow Merced to place 

additional information on the record and to clarify certain issues 

that arose during the hearing. On August 30, 2005, the trial 

court held a second in camera hearing. The trial court concluded 

that some of the information contained in the materials was 

discoverable and some was not, and ordered the discoverable 

information disclosed to the defense. 

“When a defendant shows good cause for the discovery of 

information in an officer’s personnel records, the trial court 

must examine the records in camera to determine if any 

information should be disclosed. [Citation.] The court may not 

disclose complaints over five years old, conclusions drawn 

during an investigation, or facts so remote or irrelevant that 

their disclosure would be of little benefit. [Citations.] Pitchess 

rulings are reviewed for abuse of discretion.” (People v. Winbush 

(2017) 2 Cal.5th 402, 424.) 

In this case, the record includes sealed transcripts of both 

in camera hearings and an envelope with sealed exhibits 

pertaining to Rivera’s motion. After reviewing these documents, 

we conclude that there was no abuse of discretion. The 

custodian of records brought to the trial court “all ‘potentially 

relevant’ documents to permit the trial court to examine them 

for itself”; was placed under oath at the in camera hearing; and 
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Opinion of the Court by Liu, J.

40

stated for the record “what other documents (or category of 

documents) not presented to the court were included in the 

complete personnel record, and why those were deemed 

irrelevant or otherwise nonresponsive to the defendant’s 

Pitchess motion.” (People v. Mooc (2001) 26 Cal.4th 1216, 1228–

1229.) The trial court examined the information, made a record 

of and properly released to the defendant information it deemed 

discoverable, and otherwise complied with applicable law. (Id.

at pp. 1225–1227, 1229–1230.) 

K. Admission of Evidence of Uncharged Misconduct

Rivera contends that the trial court prejudicially erred 

when it allowed the prosecutor to admit testimony about several 

incidents of uncharged misconduct involving Rivera’s use of a 

firearm against Adel Mohammed, Larry Gonzalez, Marlon 

Bradley, and Edward Bradley. Specifically, Rivera contends 

that although the evidence of uncharged misconduct was 

admitted as evidence of predicate offenses involving the Merced 

Gangster Crips gang, the jury was permitted to consider it for 

the purpose of showing premeditation, deliberation, intent, and 

gang-related motive with respect to the charged crimes 

involving McIntire and Office Gray. 

During opening argument, the prosecutor mentioned two 

prior instances involving Rivera’s alleged relationship with his 

“gang and guns”: one in 2000 in which Rivera, who was 

accompanied by several other people, pulled a gun on two young 

men who were sitting in a car outside a liquor store, and another 

in 2001 in which Rivera fired between six and eight shots on a 

group of men in a residential neighborhood in Merced. 

Mohammed, Marlon Bradley, and Jamilah Peterson were all 

permitted to testify about these events. In closing, the 
PEOPLE v. RIVERA

Opinion of the Court by Liu, J.

41

prosecutor alluded to the Merced shooting to argue that Rivera 

premeditated the murder of Officer Gray: “Remember the jury 

instruction on premeditation says it will vary with each 

individual. How long do you think it took this individual to 

decide to kill? How long do you think it took for him to decide to 

fire three shots at Aaron McIntire and Kimberly Bianchi four 

days before? How long do you think it took for him to fire six 

shots at Marlon Bradley three-and-a-half years before that?” 

The prosecutor also argued: “[Rivera] made the decisions that 

took him a little further and a little further . . . . We’re not even 

talking one shot, Ladies and Gentlemen; we’re talking two 

shots. You got to pull that trigger twice. He had to pull it three 

times with Bianchi and McIntire, like he had to pull it six times 

with Marlon Bradley.” 

“Evidence that a defendant has committed crimes other 

than those currently charged is not admissible to prove that the 

defendant is a person of bad character or has a criminal 

disposition; but evidence of uncharged crimes is admissible to 

prove, among other things, the identity of the perpetrator of the 

charged crimes, the existence of a common design or plan, or the 

intent with which the perpetrator acted in the commission of the 

charged crimes. [Citation.] Evidence of uncharged crimes is 

admissible to prove identity, common design or plan, or intent 

only if the charged and uncharged crimes are sufficiently similar 

to support a rational inference of identity, common design or 

plan, or intent.” (People v. Kipp (1998) 18 Cal.4th 349, 369.) “On 

appeal, the trial court’s determination of this issue, being 

essentially a determination of relevance, is reviewed for abuse 

of discretion.” (Ibid.) 

The Attorney General argues that evidence of the two 

instances of uncharged misconduct were relevant to prove 
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Opinion of the Court by Liu, J.

42

Rivera’s state of mind at the time he committed the charged 

offenses, including premeditation, deliberation, and a gangrelated motive. “In order to be admissible to prove intent, the 

uncharged misconduct must be sufficiently similar to support 

the inference that the defendant ‘ “probably harbor[ed] the same 

intent in each instance.” ’ ” (People v. Ewoldt (1994) 7 Cal.4th 

380, 402, quoting People v. Robbins (1988) 45 Cal.3d 867, 879.) 

Only “[t]he least degree of similarity (between the uncharged act 

and the charged offense) is required in order to prove intent.” 

(Ewoldt, at p. 402.) 

Here, Marlon Bradley testified about a 2001 shooting after 

a conflict between two rival gangs at a party. After being 

encouraged by a fellow member of the Merced Gangster Crips to 

“[h]it them niggers,” Rivera shot six to eight bullets from a 

revolver in the direction of Bradley and two other men, but 

missed. This incident meets the standard of admissibility to 

show intent, premeditation, and gang-related motive with 

respect to the shooting of Aaron McIntire, in which Rivera 

allegedly shot a gun while accompanied by a fellow member of 

the Merced Gangster Crips. The incident in which Rivera, 

accompanied by a couple of other people, brandished a firearm 

at Mohammed and Gonzalez as they sat in a car is similarly 

probative of Rivera’s intent with respect to shooting at McIntire, 

who was also sitting in a car.

But the Attorney General does not explain what made 

these uncharged offenses sufficiently similar to the shooting of 

Officer Gray, which occurred four years later and involved facts 

and circumstances different from both a nonlethal gang-directed 

shooting and an incident involving pointing a firearm at two 

men sitting in a car. We are therefore skeptical that the 

uncharged offenses were admissible for the purpose of proving 
PEOPLE v. RIVERA

Opinion of the Court by Liu, J.

43

premeditation, deliberation, or a gang-related motive with 

respect to the shooting of Officer Gray. 

Nevertheless, Rivera did not object to the prosecutor’s use 

of the evidence of uncharged misconduct for the purpose of 

supporting a theory of premeditation or deliberation with 

respect to the killing of Officer Gray, nor did he object to the use 

of CALJIC No. 2.50, which instructed the jury that the evidence 

of uncharged misconduct could be used to show intent or gangrelated motive. Any objection to the use of the evidence for these

purposes is therefore forfeited. (Pensinger, supra, 52 Cal.3d at 

p. 1251; Friend, supra, 47 Cal.4th at p. 29.) 

L. Cumulative Effect of Guilt Phase Errors

Rivera contends that his convictions should be reversed 

because the cumulative prejudice of the alleged errors during 

the guilt phase violated his due process right to a fundamentally 

fair and reliable trial under the California and federal 

Constitutions. We have found or assumed several errors: the 

trial court’s instruction on a factually inadequate theory of 

liability for the special circumstance allegation of murder to 

prevent arrest or escape from lawful custody; the trial court’s 

failure to instruct on the elements of assault; the prosecutor’s 

reference to evidence not admitted into the record as 

corroborating evidence; the prosecutor’s misstatement of the law 

about a gang member’s eligibility for second degree murder; and 

the trial court’s admission of uncharged misconduct to support 

the prosecution’s argument that Rivera premeditated the 

murder of Officer Gray. As discussed, each of the errors was 

individually harmless. Because they largely relate to distinct 

offenses and unrelated evidentiary issues, we conclude that they 

do not cumulatively amount to prejudice requiring reversal of 
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Opinion of the Court by Liu, J.

44

Rivera’s conviction. (See, e.g., Moore, supra, 51 Cal.4th at 

pp. 417–418 [“The three errors we have concluded or assumed 

occurred below, each individually harmless, related to distinct 

procedural or evidentiary issues not closely related to one 

another. We see no possibility their individual effects, if any, 

cumulatively resulted in prejudice to defendant.”].)

III. PENALTY PHASE AND SENTENCING ISSUES

A. Admission of Juvenile Adjudications 

Rivera contends the trial court erred at the penalty phase 

by admitting, over his objection, evidence of his juvenile 

adjudications and his commitment as a ward of the juvenile 

court at ages 15 and 16. 

“Section 190.3, factor (b), permits the penalty phase jury 

to consider ‘[t]he presence or absence of criminal activity by the 

defendant which involved the use or attempted use of force or 

violence or the express or implied threat to use force or 

violence.’ ” (People v. Combs (2004) 34 Cal.4th 821, 859 (Combs), 

quoting Pen. Code § 190.3, factor (b).) “ ‘ “Evidence of prior 

criminal behavior is relevant under section 190.3, factor (b) if it 

shows ‘conduct that demonstrates the commission of an actual 

crime, specifically, the violation of a penal statute. . . .’ ” ’ ” 

(Combs, at p. 859, quoting People v. Hughes (2002) 27 Cal.4th 

287, 382.) Accordingly, “although the fact of a juvenile 

adjudication is inadmissible as a factor in aggravation” because 

juvenile adjudications “are not ‘prior felony convictions’ within 

the meaning of section 190.3, factor (c),” such adjudications may 

be admissible under factor (b), which “involves evidence of 

violent conduct other than the capital crimes, regardless of 

when the misconduct occurred or whether it led to a criminal 

conviction.” (People v. Taylor (2010) 48 Cal.4th 574, 652–653
PEOPLE v. RIVERA

Opinion of the Court by Liu, J.

45

(Taylor).) The trial court therefore did not err by admitting Jeff 

Kettering’s testimony referring to Rivera’s juvenile adjudication 

involving criminal threats and brandishing a deadly weapon as

evidence of “criminal activity” under section 190.3, factor (b). 

Rivera argues that the high court’s decisions in Roper v. 

Simmons (2005) 543 U.S. 551, Graham v. Florida (2010) 560 

U.S. 48, Miller v. Alabama (2012) 567 U.S. 460, and Hall v. 

Florida (2014) 572 U.S. 701 [134 S.Ct. 1986] operate to preclude 

admission of his juvenile criminal activity and that the jury’s 

consideration of such evidence is barred by the Eighth and 

Fourteenth Amendments. 

“It is well established the federal Constitution does not bar 

consideration of unadjudicated criminal offenses.” (People v. 

Bramit (2009) 46 Cal.4th 1221, 1239.) “Roper does not compel 

exclusion of such evidence.” (Taylor, supra, 48 Cal.4th at 

p. 653.) “That case holds that the execution of individuals who 

were under 18 years of age at the time of their capital crimes is 

prohibited by the Eighth and Fourteenth Amendments. It says 

nothing about the propriety of permitting a capital jury, trying 

an adult, to consider evidence of violent offenses committed 

when the defendant was a juvenile. An Eighth Amendment 

analysis hinges upon whether there is a national consensus in 

this country against a particular punishment. [Citations.] 

Defendant’s challenge here is to the admissibility of evidence, 

not the imposition of punishment.” (Bramit, at p. 1186.) We 

have also observed that the same reasoning applies to Miller v. 

Alabama and Graham v. Florida. We concluded these cases “do 

not address the question of whether evidence of juvenile 

misconduct can be considered on the question of what 

punishment a defendant may receive for crimes committed as 

an adult.” (People v. Rices (2017) 4 Cal.5th 49, 87.) We also 
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Opinion of the Court by Liu, J.

46

observed that the high court’s more recent decision in Hall v. 

Florida was “even further afield from this question” because the 

U.S. Supreme Court “never suggested that evidence of juvenile 

misconduct may not be admitted in deciding the proper 

punishment for crimes an adult commits.” (Rices, at p. 87.) The 

jury’s consideration of Kettering’s testimony concerning 

Rivera’s juvenile criminal activity was permissible.

B. Admission of Rivera’s Postcrime Statements and 

Conduct 

During the penalty phase, Sergeant Carbonaro testified 

about an incident on April 18, 2006 in which Rivera allegedly 

flooded his cell and referred to Officer Gray. Sergeant 

Carbonaro testified that Rivera “was causing a disturbance. He 

was flooding out his cell. . . . He was angry because he could not 

be rehoused. He wanted to be rehoused down in general 

population. . . . He made a statement that he didn’t — he 

thought that this was unfair. Everybody else gets a chance and 

that just because some pig got killed he was there.” Sergeant 

Carbonaro explained that she understood Rivera to be referring 

to Officer Gray. At the time, Rivera objected that there was a 

videotape of the incident without any indication Rivera ever 

made those statements; that the testimony was more prejudicial 

than probative; and that the prosecution may not present any 

evidence that Rivera was allegedly not remorseful unless Rivera 

presents evidence that he is remorseful for his crimes. 

Acknowledging that the testimony could not be admitted to 

show lack of remorse except in rebuttal, the trial court allowed 

the testimony under Penal Code section 190.3, factor (a) as 

“[c]ircumstances of the crime showing his attitude towards the 

victim.” Rivera contends that the trial court committed 
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Opinion of the Court by Liu, J.

47

prejudicial error by allowing the testimony as an aggravating 

factor.

“Overt remorselessness [at the immediate scene of the 

crime] is a statutory sentencing factor . . . because factor (a) of 

[Penal Code] section 190.3 allows the sentencer to evaluate all 

aggravating and mitigating aspects of the capital crime itself. 

Moreover, there is nothing inherent in the issue of remorse 

which makes it mitigating only. The defendant’s overt 

indifference or callousness toward his misdeed bears 

significantly on the moral decision whether a greater 

punishment, rather than a lesser, should be imposed. [Citation.] 

[¶] On the other hand, postcrime evidence of remorselessness 

does not fit within any statutory sentencing factor, and thus 

should not be urged as aggravating.” (People v. Gonzalez (1990) 

51 Cal.3d 1179, 1232, italics omitted.)

Assuming without deciding that the admission of Rivera’s 

alleged statement about Officer Gray was error, we see no 

reasonable possibility any error affected the jury’s death verdict. 

(Chapman, supra, 386 U.S. at p. 24; People v. Nelson (2011) 51 

Cal. 4th 198, 218, fn. 15.) The jury heard other properly 

admitted evidence of Rivera’s disparaging statements about 

Officer Gray, such as, “I hate Officer Gray. I hate Officer Gray. 

Fuck Officer Gray.” The alleged comment labeling Officer Gray 

a “pig” therefore was unlikely to have affected the verdict. 

Furthermore, the prosecution presented other aggravating 

evidence in support of a death verdict, including the 

circumstances of the crime and Rivera’s attempts to evade 

capture, Rivera’s prior felony convictions, and his prior 

instances of violent criminal conduct, including the shooting 

incident involving Bianchi and McIntire. Nothing about the 

jury’s request for a read-back of Sergeant Carbonaro’s testimony 
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Opinion of the Court by Liu, J.

48

(along with other testimony from prosecution and defense 

witnesses during its deliberations) suggests that this testimony 

tipped the scales in favor of death. We therefore conclude that 

any error in admitting the testimony was harmless beyond a 

reasonable doubt. 

Rivera also contends that the trial court abused its 

discretion under Evidence Code section 352 by admitting

Sergeant Carbonaro’s testimony. Rivera initially argued that 

the evidence was more prejudicial than probative because a 

videotape of the incident did not indicate that Rivera said what 

the statements alleged. Although the trial court ruled on the 

factor (a) relevance argument, it did not state on the record that 

it had weighed potential prejudice against probative value 

under section 352. But Rivera’s memorandum of points and 

authorities in support of his motion to exclude the evidence 

focused only on the factor (a) question and whether evidence 

showing lack of remorse could be admitted. It was therefore 

understandable that the trial court’s comments focused on the 

issue. 

“[A] court need not expressly weigh prejudice against 

probative value or even expressly state that it has done so, if the 

record as a whole shows the court was aware of and performed 

its balancing functions under Evidence Code section 352.” 

(People v. Taylor (2001) 26 Cal.4th 1155, 1169.) Although the 

court’s final orders did not acknowledge section 352, the record 

suggests that the trial court was aware of its responsibilities and 

performed its balancing functions. The trial court heard both 

counsel’s arguments before and during the hearing held 

pursuant to Evidence Code section 402. At that hearing, the 

trial court provided a detailed explanation of why it was 

allowing the evidence. Furthermore, evidence of Rivera’s 
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Opinion of the Court by Liu, J.

49

statements regarding his attitude toward Officer Gray was 

probative. (See People v. Payton (1992) 3 Cal.4th 1050, 1063 

[“Evidence of statements from defendant’s own mouth 

demonstrating his attitude toward his victims was highly 

probative.”].) The trial court did not abuse its discretion under 

Evidence Code section 352 by admitting this evidence. 

Finally, Rivera argues that, aside from Rivera’s alleged 

“pig” statement, Sergeant Carbonaro’s accompanying testimony 

about Rivera causing a disturbance by flooding his cell with 

water from the toilet and subsequently being removed from his 

cell was irrelevant and unduly prejudicial. He contends that the 

incident did not constitute “criminal activity” to be admitted as 

an aggravating factor under factor (b). 

This argument fails. There is no indication that the 

prosecutor argued that the flooding incident itself should be 

considered an aggravating factor or that the jury improperly 

considered the incident as evidence in aggravation. Any error 

in admitting the evidence was therefore harmless.

C. Jury’s Use of Allegedly Invalid Sentencing Factor 

Rivera argues that his death judgment must be reversed 

and the case remanded for a new penalty trial because of the 

court’s use of a jury instruction containing an invalid theory 

concerning the special circumstance allegation of murder to 

prevent arrest or escape from lawful custody. (See Part II.E, 

ante.) Although Rivera does not challenge the validity of the 

jury’s true finding concerning a separate special circumstance 

eligibility factor — murder of a peace officer engaged in the 

performance of his duties — Rivera argues that reversal is 

required because the jury should not have given any 
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Opinion of the Court by Liu, J.

50

aggravating weight to the facts and circumstances that the 

murder was to prevent arrest or escape from lawful custody. 

“An invalidated sentencing factor (whether an eligibility 

factor or not) will render the sentence unconstitutional by 

reason of its adding an improper element to the aggravation 

scale in the weighing process unless one of the other sentencing 

factors enables the sentencer to give aggravating weight to the 

same facts and circumstances.” (Brown v. Sanders (2006) 546 

U.S. 212, 220 (Brown); see People v. Debose (2014) 59 Cal.4th 

177, 196.) Sentencing factor (a) permits jurors to consider “[t]he 

circumstances of the crime of which the defendant was convicted 

in the present proceeding and the existence of any special 

circumstances found to be true . . . .” (Pen. Code § 190.3, subd. 

(a).)

The facts and circumstances supporting the jury’s true 

finding that the murder was committed to prevent arrest or 

escape from lawful custody were properly available for 

consideration as “circumstances of the crime of which the 

defendant was convicted.” (Pen. Code, § 190.3, subd. (a).) The 

jury was further entitled to consider these facts and 

circumstances in support of the special circumstance allegation 

that the murder involved the intentional killing of a peace officer 

engaged in the performance of his duties. (See id., § 190.2, subd. 

(a)(7).) There was therefore no constitutional violation in 

permitting the jury to give aggravating weight to these facts and 

circumstances. (See Brown, supra, 546 U.S. at p. 222–224; 

People v. Maciel (2013) 57 Cal.4th 482, 521 [concluding that no 

reversal was required because even if there were insufficient 

evidence to support the jury’s true finding of the special 

circumstance of multiple murder, the jury would have heard the 

same evidence in support of the prosecution’s alternate theory].)
PEOPLE v. RIVERA

Opinion of the Court by Liu, J.

51

D. Refusal To Instruct on Lingering Doubt 

During the penalty phase trial, Rivera requested the 

following instruction: “A juror who voted for conviction at the 

guilt phase may still have a lingering or residual doubt as to 

whether the defendant premeditated and deliberated the 

murder of Officer Gray. Such a lingering or residual doubt, 

although not sufficient to leave you with a reasonable doubt at 

the guilt phase, may still be considered as a mitigating factor at 

the penalty phase. Each individual juror may determine 

whether any lingering or residual doubt is a mitigating factor 

and may assign it whatever weight the juror feels is 

appropriate.” The trial court refused to give the requested 

instruction but indicated that it would permit Rivera to argue 

lingering doubt to the jury. While acknowledging that we have 

previously held otherwise, Rivera argues that he was entitled to 

an instruction on lingering doubt and that the trial court’s 

refusal to provide the instruction violated Rivera’s 

constitutional rights and requires reversal of the death 

judgment. We conclude that there was no error.

“Although the jurors may consider lingering doubt in 

reaching a penalty determination, there is no requirement 

under state or federal law that the court specifically instruct 

that they may do so.” (People v. Boyce (2014) 59 Cal.4th 672, 

708.) The trial court instructed the jury with CALJIC No. 8.85, 

factor (k), which “tells the jury that it may consider ‘[a]ny other 

circumstance which extenuates the gravity of the crime even 

though it is not a legal excuse for the crime and any sympathetic 

or other aspect of the defendant’s character or record that the 

defendant offers as a basis for a sentence less than death, 

whether or not related to the offense for which he is on trial.’ . . . 

That instruction sufficiently encompasses the concept of 
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Opinion of the Court by Liu, J.

52

lingering doubt.” (Boyce, at pp. 708–709, italics omitted.) The 

trial court was not required to provide any further instruction 

on lingering doubt. 

E. Death Penalty Statute as Unconstitutional and a 

Violation of International Law 

Rivera argues that many features of California’s death 

penalty statute violate the U.S. Constitution and international 

law. As Rivera acknowledges, we have repeatedly rejected 

similar claims, and Rivera provides no persuasive reason to 

revisit the following precedent:

“[T]he California death penalty statute is not 

impermissibly broad, whether considered on its face or as 

interpreted by this court.” (People v. Dykes (2009) 46 Cal.4th 

731, 813.) We have “reject[ed] the claim that section 190.3, 

factor (a), on its face or as interpreted and applied, permits 

arbitrary and capricious imposition of a sentence of death.” 

(Ibid.; see Tuilaepa v. California (1994) 512 U.S. 967, 975–976, 

978.) 

“The death penalty statute does not lack safeguards to 

avoid arbitrary and capricious sentencing . . . or constitute cruel 

and unusual punishment on the ground that it does not require 

either unanimity as to the truth of aggravating circumstances 

or findings beyond a reasonable doubt that an aggravating 

circumstance (other than Pen. Code, § 190.3, factor (b) or factor

(c) evidence) has been proved, that the aggravating factors 

outweighed the mitigating factors, or that death is the 

appropriate sentence.” (People v. Rangel (2016) 62 Cal.4th 

1192, 1235.) “[A]t the penalty phase . . . no further facts need to 

be proved in order to increase the punishment to . . . death.” 

(People v. Griffin (2004) 33 Cal.4th 536, 595.) Nothing in 
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Opinion of the Court by Liu, J.

53

Hurst v. Florida (2016) 577 U.S. __ [136 S.Ct. 616], 

Cunningham v. California (2007) 549 U.S. 270, Blakely v. 

Washington (2004) 542 U.S. 296, Ring v. Arizona (2002) 

536 U.S. 584, or Apprendi v. New Jersey (2000) 530 U.S. 466, 

undermines these conclusions. (Rangel, at p. 1235, fn. 16.)

“No burden of proof is constitutionally required, nor is the 

trial court required to instruct the jury that there is no burden 

of proof.” (People v. Dement (2011) 53 Cal.4th 1, 55.) The trial 

court need not instruct that there is a presumption of life, that 

if the mitigating factors outweigh the aggravating factors the 

jury should impose a sentence of life imprisonment without the 

possibility of parole, or that a jury need not be unanimous in 

finding the existence of a mitigating factor. (People v. Williams

(2016) 1 Cal.5th 1166, 1204; People v. Adams (2014) 60 Cal.4th 

541, 581; Moore, supra, 51 Cal.4th at pp. 1139–1140.) 

“[U]nanimity with respect to aggravating factors is not required 

by statute or as a constitutional procedural safeguard.” (People 

v. Taylor (1990) 52 Cal.3d 719, 749.)

The language “so substantial” and “warrants” in CALJIC 

No. 8.88 is not impermissibly vague. (People v. Romero and Self

(2015) 62 Cal.4th 1, 56.) The trial court was not required to 

delete inapplicable factors from CALJIC No. 8.85 (People v. 

Watson (2008) 43 Cal.4th 652, 701), or “instruct that the jury 

can consider certain statutory factors only in mitigation” 

(Valencia, supra, 43 Cal.4th 268, 311).

“The federal constitutional guarantees of due process and 

equal protection, and against cruel and unusual punishment 

[citations], do not require intercase proportionality review on 

appeal.” (People v. Mai (2013) 57 Cal.4th 986, 1057.) “Moreover, 

‘capital and noncapital defendants are not similarly situated 
PEOPLE v. RIVERA

Opinion of the Court by Liu, J.

54

and therefore may be treated differently without violating’ a 

defendant’s right to equal protection of the laws, due process of 

law, or freedom from cruel and unusual punishment.” (People 

v. Carrasco (2014) 59 Cal.4th 924, 971.) “ ‘The death penalty as 

applied in this state is not rendered unconstitutional through 

operation of international laws and treaties.’ ” (People v. 

Jackson (2016) 1 Cal.5th 269, 373.)

F. Cumulative Effect of Guilt and Penalty Phase 

Errors 

Rivera contends that the penalty judgment must be 

reversed due to the cumulative prejudice of the alleged errors 

during the guilt and penalty phases in violation of his due 

process right to a fundamentally fair and reliable trial under the 

California and federal Constitutions. We have assumed one 

error in the penalty phase: the trial court’s decision to admit 

evidence of Rivera’s postcrime statements and conduct under 

factor (a). Even if the trial court erred by admitting this 

evidence, it was not individually prejudicial and is unrelated to 

the previously discussed guilt phase errors. We conclude that 

no identified or assumed error, individually or cumulatively, 

requires reversal of the judgment. (See People v. Bolden (2002) 

29 Cal.4th 515, 567–568.)

G. Restitution and Parole Revocation Fines

Rivera contends, and the Attorney General agrees, that 

the trial court erred by imposing two fines in excess of the 

statutory maximum: a restitution fine of $23,600 imposed 

under Penal Code section 1202.4, subdivision (b), and a parole 

revocation fine of $23,600 imposed under Penal Code section 

1202.45. The statutory maximum for each fine is $10,000. (Pen. 
PEOPLE v. RIVERA

Opinion of the Court by Liu, J.

55

Code, § 1202.4, subd. (b); see People v. Blackburn (1999) 72 

Cal.App.4th 1520, 1534 (Blackburn).) 

Unauthorized sentences are those that “ ‘could not 

lawfully be imposed under any circumstance in the particular 

case’ ” (People v. Smith (2001) 24 Cal.4th 849, 852), including a 

trial court’s imposition of a restitution fine in excess of the 

maximum amount permitted by the applicable statute 

(Blackburn, supra, 72 Cal.App.4th at p. 1534). An unauthorized 

sentence is reviewable on appeal regardless of whether it was 

objected to at trial. (Smith, at p. 852.) When a trial court 

imposes fines in excess of the statutory maximum, the proper 

remedy is to modify the judgment to reduce the fines to the 

statutory maximum. (Blackburn, at p. 1534.) Accordingly, we 

will modify the judgment to reduce the restitution fine pursuant 

to Penal Code section 1202.4, subdivision (b), to $10,000, and the 

parole revocation fine pursuant to Penal Code section 1202.45 

to $10,000.

CONCLUSION

We modify the judgment to reduce the restitution and 

parole revocation fines to $10,000 each. We affirm the judgment 

as modified.

LIU, J.

We Concur:

CANTIL-SAKAUYE, C. J.

CHIN, J.

CORRIGAN, J.

CUÉLLAR, J.

KRUGER, J.

GROBAN, J.
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Rivera

__________________________________________________________________________________

Unpublished Opinion

Original Appeal XXX

Original Proceeding

Review Granted

Rehearing Granted

__________________________________________________________________________________

Opinion No. S153881

Date Filed: May 23, 2019

__________________________________________________________________________________

Court: Superior

County: Colusa

Judge: S. William Abel

__________________________________________________________________________________

Counsel:

Stephen M. Lathrop, 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.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Stephen M. Lathrop

Law Offices of Lathrop & Villa

904 Silver Spur Road, #430

Rolling Hills Estates, CA 90274

(310) 237-1000

Darren K. Indermill

Deputy Attorney General

1300 I Street, Suite 125

Sacramento, CA 94244-2550

(916) 210-7689