People v. Rivera CA1/1

Filed 6/5/14 P. v. Rivera CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, Plaintiff and Respondent, A139424 v. INOCENTE J. RIVERA, (San Francisco City & County Super. Ct. No. 00216056/10013673) Defendant and Appellant.

Inocente J. Rivera appeals from an order revoking his probation. Defendant contends the evidence the trial court relied upon to find a probation violation—the testimony of his stepdaughter by a former marriage that he had raped her while on probation—was physically impossible or so inherently improbable that it could not constitute substantial evidence. We disagree and affirm the revocation order. I. BACKGROUND Defendant was charged by complaint with the sale of a controlled substance. (Health & Saf. Code, § 11352, subd. (a); count I.) The complaint also alleged defendant had prior convictions (Pen. Code,1 § 667.5, subd. (b)) and was on bail when he committed the crime alleged (§ 12022.1). On July 18, 2011, defendant pleaded guilty to an added count of accessory after the fact. (§ 32.) All other charges and enhancements were dismissed. On August 8, 2011, the court sentenced defendant to three years’ probation.

1 All further statutory references are to the Penal Code.

Defendant’s probation was administratively revoked twice, on December 19, 2011 and January 4, 2012. The court granted supervised pretrial release on February 3, 2012. On March 30, 2012, defendant was released to the City Team Ministries Residential Treatment Program (hereafter City Team) in Oakland. On May 4, 2012, probation was reinstated on the original terms and conditions and extended to August 7, 2014. On March 6, 2013, a motion to revoke defendant’s probation was filed by the probation department. The petition alleged defendant was a suspect in a forcible rape. A contested hearing on the petition began on June 21, 2013 and concluded after five days of hearings on July 22, 2013. A. Prosecution Case The alleged rape victim was defendant’s stepdaughter, N.T., who was 14 years old at the time of the probation revocation hearing. N.T.’s mother, E.C., was married to defendant for about a year after about a year of dating him. From about 2008 to 2010, defendant, E.C., N.T., and defendant’s mother, Cecilia Rivera, lived together in a house in South San Francisco. N.T. explained her relationship with defendant was good at first. However, defendant began doing things that made N.T. uncomfortable around the time she was 10 or 11 years old. Defendant stuck knives under the bathroom door while N.T. was showering and used the reflection to view her when she came out of the shower. Sometimes, when N.T. was sitting on the couch, defendant would move N.T. onto his lap. When she told him this made her uncomfortable, defendant would make up excuses such as saying he just wanted her to have a better view of the TV. When they lived together, it was common for N.T. to be home alone with defendant in the evenings. E.C. was a waitress and would often work double shifts. On two occasions when nobody else was home, defendant took N.T. to a room next to the kitchen and made her watch pornographic videos. He tied her to a chair with cords and put duct tape over her mouth. N.T.’s mother came home in the middle of one of these incidents, but defendant was able to remove the cords and duct tape before she came