People v. Rivera CA3

Filed 4/3/23 P. v. Rivera CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C095684

Plaintiff and Respondent, (Super. Ct. No. 18FE011519)

v.

MIGUEL ANGEL HERNANDEZ RIVERA,

Defendant and Appellant.

A jury found defendant Miguel Angel Hernandez Rivera guilty of 14 counts of committing a lewd and lascivious act on a child under the age of 14 (Pen. Code, § 288, subd. (a)1 —counts 1-7, 14-20), three counts of committing a lewd and lascivious act on a 14 year old while being at least 10 years older (§ 288, subd. (c)(1)—counts 8-10), one count of going to meet a minor for a lewd purpose (§ 288.4, subd. (b)—count 11), and

1 Undesignated statutory references are to the Penal Code.

1

two counts of annoying or molesting a child (§ 647.6, subd. (a)—counts 12 and 13). The jury found that defendant committed his violations of section 288 against more than one victim (§ 1203.066, subd. (a)(7)) and was out on bail when he committed at least one of the offenses in counts 14 through 20 (§ 12022.1). The trial court sentenced defendant to 34 years in prison: three years on count 1; two years each on counts 2 through 7; eight months each on counts 8 through 10; one year on count 11; two years each on counts 14 through 20; and two years for the section 12022.1 enhancement. The trial court also sentenced defendant to one year each on counts 12 and 13, to be served in county jail, which was ultimately deemed served based on his credit for time served. On appeal, defendant raises three arguments pertaining to his conviction for going to meet a minor for lewd a purpose (count 11): (1) there was insufficient evidence that he went to the arranged meeting place; (2) his sentence was unauthorized because the verdict did not contain a finding that he went to the arranged meeting place; and (3) the trial court had a sua sponte duty to instruct on the lesser included offense of arranging a meeting with a minor for a lewd purpose (§ 288.4, subd. (a)). We will affirm the judgment. I. BACKGROUND In light of the issues raised by defendant, we summarize only those facts that are relevant to the question of whether he went to the arranged meeting place with respect to count 11: On June 14, 2018, the victim made a pretext call to defendant from the police station. Defendant said he would pick the victim up from his house to go somewhere. At 1:20 p.m., defendant texted the victim that he would be there at 2 p.m. Just before 2 p.m., defendant sent a text message to the victim stating that he was there. Defendant pulled his vehicle up to the curb in front of the victim’s house. A police officer testified the vehicle was running. Officers conducted a felony vehicle stop and arrested defendant.