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P. v. Rivas CA4/1 (2016) · DecisionDepot
/ California Court of Appeal P. v. Rivas CA4/1 Unpublished Filed 3/1/16 P. v Rivas CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA THE PEOPLE, D069238 Plaintiff and Respondent,
v. (Super. Ct. No. FVA1300671)
JOSE ROBERTO RIVAS, SR., Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Bernardino County,
Shahla S. Sabet, Judge. Judgment affirmed; remanded for resentencing.
Nancy Olsen, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,
Barry Carlton and Heidi Salerno, Deputy Attorneys General, for Plaintiff and
Respondent.
A jury convicted Jose Roberto Rivas, Sr. of 12 counts of committing lewd and
lascivious acts on a child under the age of 14 years and found true multiple victim
allegations as to each count. Rivas's victims were his two granddaughters, Jane and Mary
Doe, and a family friend's daughter, Abby Doe. Rivas appeals, contending: (1) the
evidence did not support one of the six counts involving Jane; (2) the trial court erred by
More from California Court of Appeal Source: opinion data from the Free Law Project / CourtListener (public-domain court records). DecisionDepot is for informational use only and is not legal advice — verify against the official reporter before relying on any text or AI-generated summary.
imposing separate life sentences on three counts involving Jane that occurred on one
occasion and a life sentence on the count he claims was not supported by substantial
evidence; and (3) his sentence of 180 years to life constitutes cruel and unusual
punishment. The People concede and we agree that the trial court was authorized to
impose only one life term involving the three offenses Rivas committed against Jane on
one occasion. In all other respects, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND In 2003, Rivas told six-year-old Jane, whose clothes were off, to get onto his bed.
Rivas proceeded to kiss Jane on the neck and touched her breasts. He pulled his pants
down, slouched over her and rubbed his penis on her vagina.
On another day, Rivas put the back of a dining chair against the door in the living
room that opened to the outside of the house. Rivas placed Jane on the chair standing up
and facing the door. He then put his fingers in Jane's vagina. Jane became scared,
screamed and told Rivas to stop.
On a third occasion, while Jane and her siblings were on the floor watching
television, Rivas told Jane to sit next to him on the couch. Rivas instructed Jane to put
her hand down his pants and grab his penis, which she did. Jane quickly pulled her hand
When she was in the second grade, Jane told her siblings what Rivas had done to
her. Jane did not tell her mother or grandmother because she was scared and thought she
Officer Randall Peterson's Testimony
Officer Peterson testified that when Jane was 15 years old, he spoke to her about
Rivas. Officer Peterson described how Jane reported multiple instances of sexual abuse
by her grandfather. When asked to describe the incidents, Officer Peterson stated:
"There's multiple instances. So it is hard to describe. One instance was he would
digitally penetrated [sic.]. The finger was inserted into her vagina. Another instance was
that the defendant's penis was rubbed against her vagina, but not inserted. Another
instance was she was kissed on the neck. And then another was that he used his hand
underneath her clothes to touch her vagina and breasts."
In 2004 or 2005, when Mary was five or six years old, Rivas took her to his
bedroom. He laid Mary down on her back on the bed, took off her underwear, and spread
open her legs. Rivas then proceeded to insert his penis in Mary's vagina and kissed her
on the mouth. Rivas stopped when he heard his wife return from the grocery store.
Similar incidents occurred at least two more times until Mary was approximately eight
When Abby was 10 years old, she went to Rivas's home because her mother was
friends with Rivas's daughter. While Abby was at Rivas's house, Rivas pulled up her
shirt, put his hand on her chest, and kissed her stomach. Rivas also rubbed Abby's vagina
over her clothing. After hearing about what had occurred, Abby's mother called the
DISCUSSION
I. Sufficiency of the Evidence Counts five through ten against Rivas pertained to Jane. While the operative
second amended information identified the victim for each count, it did not specify the
particular conduct connected to each count. During deliberations, the jury asked the
court to "list . . . what the acts are that are connected with each of the 6 counts against
Jane Doe." Over defense counsel's objection, the court provided the following response:
"[t]ouching her naked breast; kissing on her neck; rubbing his penis on her vagina;
fondling her vagina; digitally penetrating her vagina; having her touch his penis."
The parties do not dispute that Jane only testified as to conduct supporting five
counts of lewd acts committed by Rivas against her. Further, they agree that the sixth
count was based solely on Officer Peterson's testimony that "[Rivas] used his hand
underneath [Jane's] clothes to touch her vagina and breasts." Rivas contends Officer
Peterson's testimony did not support a separate crime against Jane because it could not be
determined from the officer's testimony whether a separate act of lewd conduct, apart
from the acts described by Jane at trial, had occurred. He also argues the trial court
bolstered the evidence by listing six acts for the jury and characterizing one of those acts
as "fondling" Jane's vagina because that term was more suggestive than the term
"touching" used by Officer Peterson. We reject Rivas's arguments.
In considering a challenge to the sufficiency of the evidence, "we review the entire
record in the light most favorable to the judgment to determine whether it contains
substantial evidence — that is, evidence that is reasonable, credible, and of solid value —
from which a reasonable trier of fact could find the defendant guilty beyond a reasonable
doubt. . . . We presume every fact in support of the judgment the trier of fact could have
reasonably deduced from the evidence. . . . 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. . . . 'A
reviewing court neither reweighs evidence nor reevaluates a witness's credibility.' "
(People v. Albillar (2010) 51 Cal.4th 47, 60, citations omitted.) We simply consider
whether " ' "any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt." ' " (People v. Rich (1988) 45 Cal.3d 1036, 1081.)
Here, applying the proper standard of review, there was substantial evidence to
support Rivas's conviction for six counts of committing lewd and lascivious acts on Jane.
Jane clearly testified regarding five acts that occurred during three separate incidents.
Two of those three incidents included conduct involving Jane's vagina. In the first
incident, Rivas rubbed his penis on Jane's vagina while her clothes were off. In the
second incident, Rivas put his fingers inside Jane's vagina while she was standing on a
chair. Officer Peterson also described these two acts. In addition, Officer Peterson
testified that Jane told him of an incident in which Rivas touched her vagina underneath
her clothes. Contrary to Rivas's argument, this evidence supported a separate count of
lewd conduct on a child. The jury could reasonably conclude that the act Officer
Peterson described of Rivas touching Jane's vagina underneath her clothes was separate
and distinct from the acts that Jane testified to because Jane's testimony differed in that
she described an incident in which Rivas rubbed his penis on her vagina while her clothes
were off, and another in which he digitally penetrated her. Reversal of the judgment is
not warranted even if we might have made contrary findings or drawn different
inferences, as it is the trier of fact, not the appellate court, that must be convinced beyond
a reasonable doubt. (People v. Perez (1992) 2 Cal.4th 1117, 1126.)
We also reject Rivas's argument that the trial court endorsed the prosecution's
interpretation of the evidence by listing the six acts involving Jane in response to the
jury's question. Based on our review of the record, there is no indication that the trial
court misled the jury. Consistent with the second amended information, the trial court
instructed the jury that Rivas was charged with six counts of committing a lewd or
lascivious act on Jane. In response to a jury question, the trial court provided the jury
with a list of the particular acts connected to each count. The list the trial court provided
to the jury corresponded to the evidence at trial. Further, the trial court merely listed the
acts without any suggestion of whether the evidence supported each count. This was
similar to if the acts had been identified with each count in the information. Accordingly,
Rivas has not shown error in the trial court's response to the jury's question.
Lastly, Rivas's argument that the trial court erred by listing one of the six acts as
"fondling" rather than "touching" Jane's vagina also lacks merit. As the People point out,
Rivas forfeited the claimed error by failing to object to the use of the term "fondling" in
the trial court. (See People v. Ross (2007) 155 Cal.App.4th 1033, 1048.) Even if we
overlook defense counsel's failure to object or request a different response, Rivas's claim
fails. There is no significant difference between "fondling" and "touching." "Fondle"
means "to touch or handle (something) in a gentle way" or "to touch (someone) in a
sexual way." (Merriam-Webster Online Dict. (2016) <http://www.merriam-
webster.com/dictionary/fondle> [as of Feb. 29, 2016].) "Touch" means "to put your
hand, fingers, etc., on someone or something." (Merriam-Webster Online Dict. (2016)
< http://www.merriam-webster.com/dictionary/touch> [as of Feb. 29, 2016].) In the
context of this case, the trial court's use of "fondle" was no more suggestive than Officer
Peterson's use of "touch" as the two terms mean essentially the same thing.
II. Alleged Sentencing Error For the six counts of lewd acts perpetrated on Jane, the trial court sentenced Rivas
to six consecutive terms of 15 years to life under the "One Strike" law. (Pen. Code,
§ 667.61.) (All further statutory references are to the Penal Code.) It is undisputed that
three of those counts occurred on a single occasion in 2003. Those crimes were Rivas's
acts of kissing Jane's neck, touching her breast, and rubbing his penis on her vagina
(together, the 2003 crimes). Rivas argues the trial court erred by imposing separate life
sentences for each of the 2003 crimes.
As Rivas points out, at the time he committed the 2003 crimes, the "One Strike"
law provided that the applicable prison term "shall be imposed on the defendant once for
any offense or offenses committed against a single victim during a single occasion."
(§ 667.61, former subd. (g).) Our Supreme Court interpreted the phrase "during a single
occasion" in that version of the One Strike law to mean the offenses "were committed in
close temporal and spatial proximity." (People v. Jones (2001) 25 Cal.4th 98, 107
(Jones).) Applying that definition, our Supreme Court indicated that "a sequence of
sexual assaults by defendant against one victim that occurred during an uninterrupted
time frame and in a single location" should be determined to have occurred on a single
occasion within the meaning of the statute. (Id. at pp. 101, 107 [sexual assaults were
committed on a single occasion when the defendant performed numerous sex acts on the
victim in a car over the span of at least one and a half hours].)
The People concede and we agree that the court erred in imposing separate life
sentences for each of the 2003 crimes. Those crimes occurred during an uninterrupted
time frame in a single location against one victim. (Jones, supra, 25 Cal.4th at p. 107.)
Thus, Rivas may be sentenced to only one life term for the 2003 crimes. (§ 667.61,
former subd. (g); People v. Stewart (2004) 119 Cal.App.4th 163, 174-175.)
Rivas also argues the trial court erred in imposing a separate life sentence on the
count involving Jane that he claims was not supported by substantial evidence, namely
the count pertaining to touching Jane's vagina underneath her clothes. He contends the
prosecution failed to present sufficient evidence that the crime occurred on a different
occasion from the other acts involving Jane. As we previously discussed, the crime
Officer Peterson described where Rivas touched Jane's vagina underneath her clothes was
separate and distinct from Rivas's other crimes against her. (Ante, pt. I.)
Jane explicitly described two separate incidents of molestation that involved her
vagina. In one instance, Rivas kissed Jane's neck, touched her breast and rubbed his
penis on her vagina while her clothes were off. This incident differed from the one
Officer Peterson described in that Jane was not wearing clothing in the incident she
described and was wearing clothing in the incident Officer Peterson described. Jane
testified that in another incident, Rivas placed her on a chair and digitally penetrated her.
Digital penetration differs from the "touching" that Officer Peterson described. Based on
the differences in the incidents as described by Jane and Officer Peterson, the evidence
supports the trial court's imposition of a separate life sentence for Rivas's lewd act of
touching Jane's vagina under her clothes.
III. Cruel and Unusual Punishment Rivas contends that his sentence of 180 years to life constitutes cruel and unusual
punishment under the federal and California Constitutions. (U.S. Const., 8th Amend.
[prohibits infliction of "cruel and unusual" punishment]; Cal. Const., art. I, § 17
[prohibits infliction of "[c]ruel or unusual" punishment].) We disagree.
The Eighth Amendment of the federal Constitution is violated when a sentence is
" 'grossly disproportionate' " to the crime. (Harmelin v. Michigan (1991) 501 U.S. 957,
1001.) Similarly, the California Constitution is violated when the punishment "is so
disproportionate to the crime for which it is inflicted that it shocks the conscience and
offends fundamental notions of human dignity." (In re Lynch (1972) 8 Cal.3d 410, 424,
fn. omitted (Lynch).) " 'Whether a punishment is cruel or unusual is a question of law for
the appellate court, but the underlying disputed facts must be viewed in the light most
favorable to the judgment.' " (People v. Mantanez (2002) 98 Cal.App.4th 354, 358.) A
defendant must overcome a "considerable burden" when challenging a penalty as cruel or
unusual. (People v. Wingo (1975) 14 Cal.3d 169, 174.)
We examine three factors to determine whether a sentence is proportionate to the
offense and the defendant's circumstances such that it does or does not constitute cruel
and unusual punishment: (1) the gravity of the offense and the harshness of the penalty;
(2) sentences imposed for other crimes in the same jurisdiction; and (3) sentences
imposed for the same crime in other jurisdictions. (Ewing v. California (2003) 538 U.S.
11, 22; Lynch, supra, 8 Cal.3d at pp. 425-427 [comparable three-prong test].) Rivas does
not address penalties for similar offenses in other states, nor does he compare sentences
imposed for other crimes in the same jurisdiction. Accordingly, he fails to demonstrate
disproportionality on these grounds. Accordingly, we analyze the gravity of the offense
and the harshness of the penalty.
"The gravity of an offense can be assessed by comparing the harm caused or
threatened to the victim or society and the culpability of the offender with the severity of
the penalty." (People v. Carmony (2005) 127 Cal.App.4th 1066, 1077.) Here, Rivas
committed lewd acts on three vulnerable children between the ages of five and ten years
old. Two of Rivas's victims were his granddaughters and the other was a family friend's
daughter. The crimes spanned nearly 10 years and occurred over multiple incidents.
Rivas abused his position of trust over the children. The callous and opportunistic nature
of Rivas's crimes against his particularly vulnerable victims are "precisely the sort of
sexual offense[s] that warrant[] harsh punishment." (People v. Alvarado (2001) 87
Rivas asserts his sentence was cruel and unusual because certain of his crimes
were less egregious than others and did not involve bodily harm. He points to the 15
years to life sentences he received for kissing Jane on the neck and Abby on the stomach.
We are not persuaded by this argument. We do not look at Rivas's acts in isolation;
rather, we must look at the totality of the circumstances surrounding the commission of
the offense, including motive, the manner in which the crime was committed, the extent
of defendant's involvement, and the consequences of his conduct. (People v. Dillon
(1983) 34 Cal.3d 441, 479.) While some of Rivas's conduct may not have resulted in
bodily injury to his victims, he caused potential psychological and emotional trauma to
his young victims. Further, in a calculated manner, Rivas waited until he was alone with
his victims to abuse them. Moreover, Rivas's acts of kissing Jane on the neck and Abby
on the stomach were committed in the context of also touching the girls' breasts and
Given the nature of Rivas's conduct involving multiple young and vulnerable
children, the circumstances surrounding the commission of the crimes, Rivas's position of
trust over the children, and his long undeterred history of abusing children, we do not
find Rivas's sentence so disproportionate to his conduct to shock the conscience and
offend fundamental notions of human dignity.
DISPOSITION The convictions are affirmed. The matter is remanded for resentencing consistent
with this opinion. Following resentencing, the trial court shall amend the abstract of
judgment and forward a certified copy to the Department of Corrections and
* Judge of the San Diego Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.