People v. Rivera CA3

Filed 9/25/15 P. v. Rivera CA3 NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE,

Plaintiff and Respondent, C072559

v. (Super. Ct. No. 12F00193)

ROGER GABRIEL RIVERA,

Defendant and Appellant.

A jury convicted defendant Roger Gabriel Rivera of felony burglary and misdemeanor battery on the mother of his children after he broke through doors to attack the mother in her parents’ home. The trial court sentenced him to nine years in prison. Defendant now contends (1) the jury was improperly instructed that a person can be convicted of the burglary of his own residence if he did not have an “unconditional possessory right of entry”; (2) there is insufficient evidence to support his burglary conviction; and (3) the California burglary statute violates the federal and state constitutions to the extent it permits a burglary conviction for entry into one’s own residence. We conclude the jury instruction accurately stated the law, substantial evidence

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supports the burglary conviction, and defendant’s constitutional challenge lacks merit. We will affirm the judgment. BACKGROUND Defendant and Yazmin lived together off and on for about six and a half years, sometimes at his parents’ house, sometimes at her parents’ house, and briefly in their own apartment. But for most of the six months prior to the crimes, Yazmin and the couple’s two young daughters lived with her parents, and defendant lived with his parents. Nonetheless, Yazmin’s father testified that he knew defendant would be staying with Yazmin and the girls while the father and his wife spent three weeks in Mexico. Defendant kept clothes, shoes and a blanket in the house and returned there each day after work while Yazmin’s parents were gone. Yazmin had a key to the house but defendant did not. She left the back door open for him and she sometimes left a key under the doormat. A week before the crimes, Yazmin told defendant to leave. But she let him return after a day or two. On the day of the crimes, Yazmin was upset because she suspected that defendant had sexual contact with another woman. She confronted him and they fought. At the preliminary hearing, Yazmin testified that defendant choked her, hit her and shoved her against a wall. She said she grabbed a kitchen knife and barricaded herself in a locked bedroom with the children and dialed 911. Defendant broke the bedroom door, entered the bedroom and forcibly took her phone. At trial, Yazmin was a reluctant witness. When presented with a transcript of her preliminary hearing testimony, she testified that defendant was angry because she told him she cheated on him. She said he pushed her against a wall and slapped the back of her head a few times. After she fell, he hit her body “like two more times.” Yazmin said she took a knife from the kitchen to her parents’ bedroom, where the couple’s daughters were sleeping, locked the door, and barricaded the door with a dresser. While she was dialing 911, the door broke, the dresser slid and defendant started wrestling her for the