People v. Rivas CA4/3

Filed 12/4/15 P. v. Rivas CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G050417

v. (Super. Ct. No. 12NF1089)

JEFFERY RIVAS, OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, Steven D. Bromberg, Judge. Affirmed. Stephen M. Lathrop, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Heather M. Clark, Deputy Attorneys General, for Plaintiff and Respondent. * *

A jury convicted Jeffery Rivas of second degree robbery (Pen. Code, §§211, 212.5, subd. (c); all statutory citations are to the Penal Code) and felon in possession of a firearm (§ 29800, subd. (a)(1)). The jury found he committed both crimes to benefit a criminal street gang. (§ 186.22, subd. (b)(1).) The jury also found he personally used a firearm during the commission of a robbery. (§ 12022.53, subd. (b).) Rivas admitted he had served a prior prison term within the meaning of section 667.5, subdivision (b). Rivas contends the court abused its discretion by denying his motion to relieve his court appointed attorney (People v. Marsden (1970) 2 Cal.3d 118, 123 (Marsden)) made six months before trial. For the reasons expressed below, we affirm. I FACTUAL AND PROCEDURAL BACKGROUND On April 1, 2012, around 11:00 p.m., Rivas flagged down John Doe in Anaheim as Doe was driving home. Rivas asked Doe his name and where he was “from,” an inquiry commonly understood to refer to gang affiliation. Doe said “nowhere,” communicating he was not a gang member. Rivas identified himself as “Minor from Small Town.” Doe had a portable hard drive connected to his stereo, and Rivas demanded to know what else Doe had in the car. Rivas threatened to take out a pistol, and reached under his shirt. Doe saw the handle of a gun protruding from Rivas’s waistband. Rivas forced Doe out of the car, reached into Doe’s pockets, and took Doe’s cell phone and debit card. He also removed the hard drive from the stereo. Rivas ran away, along with another man who stood nearby during the robbery. A police officer arrested Rivas the next day and found Doe’s phone in his pocket. Following trial in April 2014, a jury convicted Rivas as noted above. In June 2014, the court sentenced Rivas to an aggregate prison term of 23 years, comprised of the three-year middle term for second degree robbery (count 1), a 10-year consecutive term for the firearm enhancement (§ 12022.53, subd. (b)), a 10-year consecutive term for