People v. Rivas CA5

Filed 11/10/21 P. v. Rivas CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE, F081800 Plaintiff and Respondent, (Super. Ct. No. CF03907984) v.

DANIEL MENDOZA RIVAS, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Fresno County. Adolfo M. Corona, Judge. Cynthia L. Barnes, under appointment by the Court of Appeal, for Defendant and Appellant. Matthew Rodriquez, Acting Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and John Merritt, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Hill, P. J., Levy, J. and Smith, J.

Defendant Daniel Mendoza Rivas pled no contest to misdemeanor child abuse in 2004. In 2019, while defendant was in custody on an unrelated matter, he filed a motion to vacate his child abuse conviction pursuant to Penal Code section 1473.7, subdivision (a)(2)1 based on purportedly newly discovered evidence. The trial court denied his motion. On appeal, he contends this was error. The People respond that the trial court’s conclusion was correct because (1) defendant was not reasonably diligent in discovering the purportedly new evidence and (2) the evidence does not show that he was actually innocent of the charged offense when considered in light of all of the evidence. We affirm. PROCEDURAL SUMMARY On November 25, 2003, the Fresno County District Attorney filed a complaint charging defendant with child abuse (§ 273a, subd. (a); count 1) and assault by means likely to produce great bodily injury (§ 245, subd. (a)(1); count 2). On October 15, 2004, the trial court granted the People’s motion to reduce count 1 to a misdemeanor and accepted defendant’s plea of no contest to count 1, as amended, pursuant to a plea agreement. Also pursuant to the plea agreement, the trial court dismissed count 2 on the People’s motion. On count 1, defendant was granted a four-year term of probation with conditions requiring him to serve 210 days in jail and complete a 52-week child abuse treatment program. On September 3, 2019, while in custody on an unrelated matter, defendant filed a motion to vacate his conviction with the trial court, which the trial court construed as a motion pursuant to section 1473.7, subdivision (a)(2). On August 20, 2020, after the parties had fully briefed the issue and the trial court had held two hearings, the trial court denied defendant’s motion. On September 23, 2020, defendant filed a notice of appeal.