People v. Rivera CA4/1

Filed 1/28/25 P. v. Rivera CA4/1


                 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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                COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                 DIVISION ONE

                                         STATE OF CALIFORNIA



 THE PEOPLE,                                                          D084664

           Plaintiff and Respondent,

           v.                                                         (Super. Ct. No. FSB21003926)

 CARMELO RIVERA III,

           Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Bernardino
County, Michael A. Smith, Judge. Affirmed.
         Richard J. Moller, under appointment by the Court of Appeal, for
Defendant and Appellant.
         No appearance for Plaintiff and Respondent.
         Following a bench trial, a court convicted defendant and appellant
Carmelo Rivera III of one count of assault by force likely to produce great

bodily injury (Pen. Code,1 § 245, subd. (a)(4)), finding that his action in
“placing his hand around [the victim’s] neck to the point where she was


1        Undesignated statutory references are to the Penal Code.
having difficulty breathing is potentially the type of force that could or likely
produce great bodily injury.” The court withheld pronouncement of judgment
for two years and placed Rivera on supervised probation with various

conditions. It ordered him to pay certain fines and fees.2
      Rivera’s appointed appellate counsel has filed an opening brief raising
no arguable issues pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende)
and Anders v. California (1967) 386 U.S. 738 (Anders). We invited Rivera to
file a supplemental brief on his own behalf, but he did not do so. Our
independent review confirms there are no arguable issues on appeal. We
affirm.
              FACTUAL AND PROCEDURAL BACKGROUND
      In October 2021, Rivera was living with S.A. in his two-story house in

San Bernardino. S.A.’s friend Ciara Alvarez3 and Alvarez’s young son was
staying with them for a time. A few days after she moved in, Alvarez, who
was upstairs with her son, called 911. She told the operator “this guy is
strangling his girlfriend” using his hands, and that she heard them fighting
and S.A. screaming.
      Police officers responded to the call and detained Rivera. One of the
officers spoke with S.A., who was very shaken up. S.A. told the officer she
and Rivera had been arguing. She told him that during the argument, Rivera
got in S.A.’s way, and when she tried to move around him he punched or



2      Specifically, the court imposed without objection the minimum $300
restitution fine (§ 1202.4); a suspended $300 probation revocation restitution
fine (§ 1202.44), a $40 court security assessment (§ 1465.8); a $30 criminal
conviction assessment (Gov. Code, § 70373), and a $250 domestic violence
prevention fee (§ 1463.27).

3     Alvarez died before trial.
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slapped her in the face. S.A. tripped and fell on her back, then Rivera
mounted her, put his left hand over her mouth and had his right hand
clamped over her neck. S.A. yelled and screamed and was struggling to
breathe. The officer also spoke with Alvarez, who did not appear to be under
the influence of drugs. The officer observed that S.A. had a minor laceration
on her hand and a “busted lip.”
      Rivera waived a jury and the matter proceeded to a bench trial. At
trial, S.A. denied having a physical altercation with Rivera that day, and
claimed she was under pressure when she told police the argument turned
physical and Rivera put his hands over her face and on her neck, causing her
to have a hard time breathing. She only recalled a loud verbal argument,
after which the police arrived. S.A. claimed she tripped because she was in a
hurry to get the door for police. She denied that Rivera hit her in anger that
day, or that he did anything to make it hard for her to breathe.
      Testifying in his defense, Rivera denied there was any violence in his
relationship with S.A., who was his girlfriend. He testified that S.A. had
been drinking beer and was intoxicated and agitated on the day of his arrest.
He claimed he was checking on Alvarez’s young son upstairs when police
tried to kick down his door. According to Rivera, S.A. ran to the stairs to tell
him the police had arrived, then when he told her to open the door she ran
back and tripped. He told the officers that they had an argument and
nothing happened; that it did not get physical.




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      The court admitted the tape and 911 call transcript into evidence over

defense counsel’s hearsay objection,4 in part based on People v. Romero
(2008) 44 Cal.4th 386, People v. Cage (2007) 40 Cal.4th 965 and People v.
Johnson (2010) 189 Cal.App.4th 1216. The court implicitly found the call was
not testimonial and thus admissible without implicating the confrontation
clause.
                                 DISCUSSION
      As noted above, appellate counsel has filed a Wende brief and asks the
court to review the record for error. To assist the court in its review, and in
compliance with Anders, supra, 386 U.S. 738, counsel has identified two
possible issues that this court considered in evaluating the potential merits of
this appeal. Counsel asks:
      1. Was the evidence sufficient to support the conviction for assault by
means of force likely to produce great bodily injury?
      2. Was the 911 phone call admissible?
      We have reviewed the entire record as required under Wende, supra, 25
Cal.3d 436 and Anders, supra, 386 U.S. 738 and considered the potential
issues raised by Rivera’s appointed counsel. We conclude there was no error
in the court’s admission of the 911 call evidence. (See generally Smith v.
Arizona (2024) 602 U.S. 779, 783-784 [discussing Crawford, supra, 541 U.S.
36 and the confrontation clause; citing authority holding that statements
made to police to meet an ongoing emergency were not procured with a
primary purpose of creating an out-of-court substitute for trial testimony and


4 Rivera’s counsel does not specify the nature of the objection in his appellate
brief. The record reflects that defense counsel raised a “problem . . . [with]
the hearsay component” of the call. The parties treated that remark as an
objection that the call constituted testimonial hearsay barred by Crawford v.
Washington (2004) 541 U.S. 36 (Crawford).
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thus not testimonial].) We further conclude substantial evidence supports
Rivera’s conviction. (See People v. Covino (1980) 100 Cal.App.3d 660, 664-
665, 667-668 [evidence that the defendant squeezed the victim’s neck, victim
appeared to be gasping and choking, and redness on victim’s neck and back
established force likely to produce great bodily injury]; People v. Aguilar
(1997) 16 Cal.4th 1023, 1028 [holding it “well established” that “the use of
hands or fists alone may support a conviction of assault ‘by means of force
likely to produce great bodily injury’ ”].) There are no other arguable issues
that would result in a reversal or modification of the judgment. Competent
counsel has represented Rivera on this appeal.
                                DISPOSITION
      The judgment is affirmed.



                                                       O’ROURKE, Acting P. J.

WE CONCUR:



DATO, J.



DO, J.




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