People v. Rivera CA1/1

Filed 9/24/20 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, A157315 v. CLETO RANGEL RIVERA, (Napa County Super. Ct. No. 18CR001031) Defendant and Appellant.

Appellant Cleto Rangel Rivera appeals from a judgment of conviction and sentence imposed after a jury found him guilty of resisting a peace officer and causing serious bodily injury (Pen. Code,1 § 148.10, subd. (a)), and several related counts. He contends the trial court’s failure to conduct an investigation into whether one of the jurors fell asleep during trial violated his rights to due process and to an impartial jury under the Fifth and Sixth Amendments to the United States Constitution. We affirm the judgment. FACTUAL AND PROCEDURAL BACKGROUND A. Procedural Background In April 2018, an information was filed charging appellant with resisting a peace officer causing serious bodily injury (§ 148.10, subd. (a);

1 Unless otherwise indicated, all statutory references are to the Penal Code.

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counts one and two), assault upon a peace officer (§ 245, subd. (c); counts three and four), resisting an executive officer (§ 69; counts five and six), and misdemeanor giving false information to a police officer (§ 148.9, subd. (a); count seven). The information further alleged that appellant committed these offenses while on bail (§ 12022.1) and that he personally inflicted great bodily injury (§ 12022.7, subd. (a)). Appellant pleaded not guilty and denied the allegations. Two trials were conducted. In the first trial, a jury found appellant guilty on the lesser included offense of resisting a peace officer (§ 148) as to count two, and guilty on counts five, six, and seven. The jury was unable to reach verdicts as to counts one, three, and four and the great bodily injury special allegations, and a mistrial was declared. In a bifurcated court trial, the court found the on-bail allegation to be true. In April 2019, a second amended information was filed charging appellant with resisting a peace officer causing serious bodily injury (§ 148.10, subd. (a); count one), and assault on a peace officer (§ 245, subd. (c); counts three and four). The information again alleged that appellant committed the offenses while on bail (§ 12022.1) and that he personally inflicted great bodily injury (§ 12022.7, subd. (a)). Appellant pleaded not guilty. B. The People’s Case In March 2018, Napa Police Department Detective Garrett Wade and Officer Eric Koford investigated a stolen truck. Appellant’s cell phone was found in the vehicle. A records search revealed that appellant had five outstanding arrest warrants. On March 20, 2018, Detective Wade sent out a departmental “be-on-the-lookout” email with appellant’s photograph.