People v. Rivera CA3

Filed 11/16/22 P. v. Rivera CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Sacramento) ----

THE PEOPLE, C095003

Plaintiff and Respondent, (Super. Ct. No. 20FE004184)

v.

DANTE DAVE RIVERA,

Defendant and Appellant.

A jury found defendant Dante Dave Rivera guilty of one count of rape and two counts of digital penetration. The trial court sentenced defendant to six years in state prison. On appeal, defendant raises two claims. First, he contends the trial court erred in removing the lone holdout juror, who did not disclose her son was once threatened by a similar accusation during jury selection. Second, he argues the People failed to present sufficient evidence to prove beyond a reasonable doubt that defendant digitally

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penetrated the victim more than once. We disagree with both contentions and affirm the judgment.

FACTS AND HISTORY OF THE PROCEEDINGS The victim, M.D., attended a party at defendant’s mother’s house on the night of February 15, 2018. M.D. took prescription medicine, pain killers, and cocaine prior to the party, and consumed hard alcohol at the party. Towards the end of the night, M.D. became concerned that she was too intoxicated to drive home safely and decided to take a nap in the house to sober up. She asked defendant, then 22 years old, if she could nap in the house; defendant agreed and suggested M.D. sleep in his bed. M.D. complied. She followed defendant into his room, laid on top of the covers of his bed with her clothes on, and fell asleep. M.D. awoke to defendant taking her pants off. She had had no prior discussion with defendant about any type of sexual conduct and had no desire for sexual engagement with defendant. Nevertheless, defendant inserted his finger into M.D.’s vagina over her protest. He then forced M.D.’s legs apart and put his penis inside her vagina even though she repeatedly said no. Defendant eventually stopped and fell asleep next to M.D. After defendant fell asleep, M.D. gathered her belongings and left the house. After leaving the house, M.D. headed to a hospital where a sexual assault examination was done, and a sexual assault evidence collection kit was prepared.