People v. Rivada CA3

Filed 3/14/16 P. v. Rivada CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Shasta) ----

THE PEOPLE, C079331

Plaintiff and Respondent, (Super. Ct. No. 1400421)

v.

DANIEL WILLIAM RIVADA, JR.,

Defendant and Appellant.

A jury found defendant Daniel William Rivada guilty of two counts of committing a lewd act upon a child. On appeal, defendant contends the trial court abused its discretion under Evidence Code section 352 by admitting evidence of defendant’s prior incarceration for burglary. Defendant also argues that he should have been awarded an additional day of presentence conduct credit. We disagree on both points and affirm. FACTUAL AND PROCEDURAL BACKGROUND The victim lived with her cousin Felicia R. from the time the victim was 13 until she was 18. Defendant, Felicia R.’s boyfriend at the time, also lived in the house. The

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victim testified that she initially had a parent-daughter relationship with defendant, but when the victim was 15 years old, defendant began to molest her. The molestation escalated in frequency and severity until the victim was nearly 17 years old. The victim did not tell her cousin Felicia R. about defendant’s conduct because she was afraid of what defendant might do and she did not want to cause problems in the relationship between Felicia R. and defendant. When the victim was 16, she was relieved to find out that defendant was going to jail and would no longer be living in the house with her. At that point, the victim figured she would never tell Felicia R. about the assaults but would mentally bury them and take them to her grave. Defendant was indeed incarcerated from July 2006 to October 2010 for burglary. After defendant’s release, the victim was shocked to see defendant at a family gathering. With defendant no longer in jail, the victim became concerned for her family, especially the children in her family. Shortly thereafter, the victim reported the assaults. The victim had a hard time remembering the precise dates of all the assaults, but she did state the assaults eventually stopped just prior to defendant’s incarceration. Defendant was charged with two counts of committing a lewd act upon a child. The prosecution moved in limine to present evidence of defendant’s incarceration, arguing that it was relevant to the timeline of events and to the victim’s delay in reporting the crimes. Defense counsel objected, but the trial court overruled the objection. The court determined the jury was entitled to hear about the incarceration because the information was relevant and probative in particular regarding the victim’s delay in reporting the assaults. Further, the court found the probative value of the incarceration was not substantially outweighed by the danger of undue prejudice under Evidence Code section 352. During the hearing on the motion, the court worked with defense counsel and the prosecution on the best way to convey the information to the jury while mitigating any potential prejudicial effect. The parties entered a stipulation that defendant was incarcerated from July 2006 to October 2010 for a commercial burglary,