California Court of Appeal Jun 12, 2024 No. E080687Unpublished
Filed 6/12/24 P. v. Rivas CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E080687
v. (Super.Ct.No. FWV20002875)
JULIO CESAR RIVAS, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Corey G. Lee,
Judge. Affirmed.
Spolin & Dukes, Aaron Spolin, Caitlin Dukes, Jeremy M. Cutcher, and Erica
Esquivel for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Charles C. Ragland, Assistant Attorney General, Paige B. Hazard and Steve
Oetting, Deputy Attorneys General, for Plaintiff and Respondent.
1
Defendant and appellant Julio Cesar Rivas was convicted of sexually abusing two
girls on multiple occasions and sentenced to 278 years to life. In this appeal, he argues
his due process rights were violated because the amended information was not
“sufficiently specific” about when the alleged abuse occurred, and his trial counsel was
ineffective for failing to file a motion to challenge the information on that ground. He
also argues the jury instructions did not adequately emphasize that each individual count
must be proven beyond a reasonable doubt. We decline to consider his ineffective
assistance claim on direct appeal, and we find no error in the jury instructions. We
therefore affirm the judgment.
FACTS
According to the prosecution, Rivas sexually abused sisters Jane Doe (born Jan.
2008) and Mary Doe (born November 2005) for years. In May 2015, Rivas and his
girlfriend, who is the girls’ aunt, moved into the house where the girls lived with their
mother and father. Rivas is not married to the girls’ aunt, but the family treated him as if
he were. He is also Mary Doe’s godfather. Before they lived together, the aunt and
Rivas lived separately from the girls’ family, but the aunt would often babysit Mary Doe.
The abuse came to light in September 2019, after Jane Doe told an older cousin about it.
After Rivas was arrested, forensic examination discovered on his phone several videos
depicting Jane Doe’s genitals; the videos had been deleted but were recovered from a
cache file.
2
The amended information charged Rivas with 11 counts of lewd acts on a child 1 under the age of 14 (Pen. Code , § 288, subd. (a), counts 1-11). Counts 1 through 8
alleged Jane Doe as the victim of offenses committed between May 1, 2015, and
September 2, 2019. Counts 9 to 11 alleged Mary Doe as the victim of offenses
committed between November 22, 2010 and November 21, 2013. Each of these 11
counts alleged the special circumstances of the victim being a child under the age of 14
and the offenses involving multiple victims under section 667.61, subdivisions (j)(2) and
(e). The information also included a twelfth count, for possession of child pornography
(§ 311.11, subd. (a)), committed between July 23, 2019, and August 8, 2019. For all
twelve counts, the information alleged six specific aggravating circumstances, as well as
a catch-all for “any other aggravating factors.” (See § 1170, subd. (b)(2).)
Jane and Mary Doe testified at trial, as did Rivas. The jury found Rivas guilty on
all 12 counts, and found true each of the alleged enhancements. The trial court found true
each of the six alleged aggravating factors. The court sentenced Rivas to 11 consecutive
terms of 25 years to life for counts 1 through 11, plus a consecutive three year term for
count 12.
DISCUSSION
A. Due Process
Rivas argues that the “long time frames” pleaded in the amended information
“deprived [him] of his constitutional right to due process.” The argument is framed as a
1 Undesignated statutory references are to the Penal Code.
3
claim of ineffective assistance of counsel, as his trial counsel did not demur to the
information. (See People v. Scott (1994) 9 Cal.4th 331, 354 [generally, “only those
claims properly raised and preserved by the parties are reviewable on appeal”]; People v.
Jeff (1988) 204 Cal.App.3d 309, 342 (Jeff) [“Failure of a defendant to demur bars any
assertion on appeal of vagueness in the information. (§ 1012.)”].) In Rivas’s view, his
counsel’s failure to demur to the information hampered his ability to defend against the
charges by making it impossible to present “an alibi defense” or “full particulars to refute
the offenses.” We decline to consider the merits of Rivas’s arguments in this appeal.
To establish ineffective assistance of counsel, “the defendant must first show
counsel’s performance was deficient, in that it fell below an objective standard of
reasonableness under prevailing professional norms. Second, the defendant must show
resulting prejudice, i.e., a reasonable probability that, but for counsel’s deficient
performance, the outcome of the proceeding would have been different.” (People v. Mai
(2013) 57 Cal.4th 986, 1009.) On direct appeal, a conviction will be reversed for
ineffective assistance “only if (1) the record affirmatively discloses counsel had no
rational tactical purpose for the challenged act or omission, (2) counsel was asked for a
reason and failed to provide one, or (3) there simply could be no satisfactory explanation.
All other claims of ineffective assistance are more appropriately resolved in a habeas
corpus proceeding.” (Ibid.)
The record does not establish why Rivas’s trial counsel did not demur to the
information. Generally, “[s]o long as the evidence presented at the preliminary hearing
4
supports the number of offenses charged against defendant and covers the timeframe(s)
charged in the information, a defendant has all the notice the Constitution requires.”
(Jeff, supra, 204 Cal.App.3d at p. 342.) Nevertheless, the defendant “may demur if he or
she believes the lack of greater specificity hampers the ability to defend against the
charges.” (Ibid.) It is possible that counsel had no tactical purpose in not demurring to
the information, for example, if counsel failed to consider the possibility of doing so, or if
counsel unreasonably believed that more specificity would not help despite evidence
indicating it would help.
But it is also possible counsel had sound reasons not to pursue the issue. For
example, counsel may have reasonably concluded that the long time frames alleged did
not hamper any potentially viable defense, or even could work in Rivas’s favor one way
or another. In closing arguments, the defense emphasized the long time period during
which the offenses were alleged to have occurred. Indeed, it was the first substantive
point counsel made in the defense’s closing argument, and counsel returned to the theme
several times. Counsel implied that it is difficult to be certain about “where a person
was” in such a long period, that there were few times witnesses saw Rivas alone with
Jane Doe given the long period, and that only one photo and video in the long period
made it more likely they were taken by Jane Doe in borrowing Rivas’s phone. Counsel
also could have thought that more specificity in times would leave less opportunity to
argue for concurrent sentences, since conduct at different times is more likely to support
a consecutive sentence. (Cal. Rules of Court, rule 4.425(a)(3).)
5
We therefore decline to decide the merits of Rivas’s ineffective assistance claim
here. The issue is better considered in a habeas corpus proceeding with a record
developed for it.
B. Jury Instructions
Rivas contends the jury was inadequately instructed that the prosecution had the
burden of proving each individual count beyond a reasonable doubt. He concedes the
jury was correctly instructed with a pattern instruction on the beyond a reasonable doubt
standard. He emphasizes, however, that the instructions on the elements of the offenses
did not reiterate that every element had to be proven beyond a reasonable doubt. He
proposes this omission “inevitably confused the jury and likely resulted in the jury
misapplying the law.” We are not persuaded.
“In reviewing an ambiguous instruction, we inquire whether there is a reasonable
likelihood that the jury misunderstood or misapplied the instruction in a manner that
violates the Constitution.” (People v. Covarrubias (2016) 1 Cal.5th 838, 906.) That
review is de novo (People v. Posey (2004) 32 Cal.4th 193, 218), and “[i]t is well
established that the instruction ‘may not be judged in artificial isolation,’ but must be
considered in the context of the instructions as a whole and the trial record” (Estelle v.
McGuire (1991) 502 U.S. 62, 72 (Estelle)). We also presume the jury “understands and
follows the court’s instructions.” (People v. Cortes (2022) 75 Cal.App.5th 198, 205
(Cortes).)
6
Rivas concedes that the pattern reasonable doubt instruction, CALCRIM No. 220,
is a correct statement of the law. After that instruction came other “lengthy” instructions
on other matters before the instructions on the elements of each offense. Those
instructions—CALCRIM No. 1110 and 1145—each used the language “the People must
prove that...,” rather than “the People must prove beyond a reasonable doubt that....” In
contrast, a later instruction on the multiple victims allegation, CALCRIM No. 3181,
specified that the People had the “burden of proving this allegation beyond a reasonable
doubt.” Rivas proposes the jury was “confused” and therefore convicted Rivas “despite
the prosecution’s failure to prove guilt beyond a reasonable doubt.”
We find no reasonable likelihood the jury misunderstood or misapplied its
instructions as Rivas proposes. The argument is incompatible with the requirement that
instructions be read as a whole, and not in “‘artificial isolation’” (Estelle, supra, 502 U.S.
at p. 72), as well as the presumption that the jury “understands and follows the court’s
instructions” (Cortes, supra, 75 Cal.App.5th at p. 205). CALCRIM No. 220 specifies:
“Whenever I tell you the People must prove something, I mean they must prove it beyond
a reasonable doubt unless I specifically tell you otherwise.” Moreover, the jury was not
only correctly instructed on the reasonable doubt standard by CALCRIM No. 220. It also
was instructed with CALCRIM Nos. 1191A and 1191B, regarding evidence of uncharged
7
and charged sex offenses, respectively, which both reemphasized that the beyond a 2 reasonable doubt standard applies to “each charge.”
Rivas has not demonstrated any instructional error. We therefore need not
consider whether any error was prejudicial.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAPHAEL J.
We concur:
CODRINGTON Acting P. J.
FIELDS J.
2 CALCRIM No. 1191B, as given, states: “The People presented evidence that the defendant committed the crimes of Lewd Act on a Child Under Age 14 charged in Counts 1 through 11, and Possession of Child or Youth Pornography, as charged in count 12.[¶] If the People have proved beyond a reasonable doubt that the defendant committed one or more of these crimes, you may, but are not required to, conclude from that evidence that the defendant was disposed or inclined to commit sexual offenses, and based on that decision, also conclude that the defendant was likely to commit the other sex offenses charged in this case.[¶] If you find that the defendant committed one or more of these crimes, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of another crime. The People must still prove each charge and allegation beyond a reasonable doubt.” (Italics added.) CALCRIM No. 1191A, also specifies that “[t]he People must still prove each charge beyond a reasonable doubt,” even if the jury finds the defendant committed the uncharged sex offenses.