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The People v. Vincent Rivera

December 16, 2010

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
VINCENT RIVERA, DEFENDANT AND APPELLANT.



(San Francisco City & County Super. Ct. No. 204462)

The opinion of the court was delivered by: Margulies, J.

P. v. Rivera CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Defendant Vincent Rivera was convicted of robbery and assault with a deadly weapon after he and two others stole a wallet. Defendant and two other men walked up to the victim, surrounded him, addressed him with a gang-related question, removed his wallet from his pocket, and walked away. When the victim ran after them and threatened to call the police if the wallet was not returned, defendant stabbed him in the chest. Defendant contends there was insufficient evidence the theft was committed by means of "force or fear" to support his conviction for robbery. We affirm.

I. BACKGROUND

Defendant was charged by indictment, filed February 26, 2008, with robbery (Pen. Code, § 211), assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)), possession of cocaine base (Health & Saf. Code, § 1351.5), and two counts of participation in a criminal street gang (Pen. Code, § 186.22, subd. (a)). The robbery was alleged to be a serious felony. (Pen. Code, §§ 1192.7, subd. (c), 667.5, subd. (c).) The robbery, assault, and possession charges were alleged to have been part of criminal street gang activities. (Pen. Code, §§ 186.22, subds. (b)(1)(A)-(C).) Defendant was also alleged to have personally inflicted great bodily injury in connection with the robbery, assault, and one of the gang participation charges. (Pen. Code, § 12022.7, subd. (a).) Finally, defendant was alleged to have personally used a deadly weapon in connection with the robbery and one of the gang participation charges. (Pen. Code, § 12022, subd. (b)(1).) His case was later consolidated with those of two other defendants. The three were tried together, but only defendant's appeal is before us in this matter.

The victim, Angel Zavala, a Spanish-speaking construction worker, purchased a snack at a fast food restaurant in the Mission District of San Francisco around 10:00 p.m. on April 14, 2007. As Zavala walked out of the restaurant, a group of three men approached and surrounded him. One asked, "que rifas," which the court interpreter translated as, "what do [you] claim?" Zavala understood the question to ask whether he was part of a gang, and it made him "nervous," since he assumed it meant the three were themselves gang members. The three then moved closer to Zavala, and one of them took his wallet. Zavala felt the hand reach into his pocket, but he did not resist because it happened quickly and he was concerned "they were going to beat me up."

After taking Zavala's wallet, the three men casually walked off. Zavala followed soon after, "thinking of getting my wallet back." As he approached, he told them to return the wallet or he would call the police. When the three merely laughed in response, Zavala tried unsuccessfully to hit one of them. As he did so, he was stabbed in the chest by one of the men. Zavala returned to the restaurant and collapsed.

During his subsequent stay in the hospital, Zavala identified pictures of two of the three men. It is not clear from his testimony whether one of the pictured men was defendant, but all three defendants were tied to the crime through surveillance video that caught the confrontation. Defendant was identified as the person who stabbed Zavala.

The jury convicted defendant on each of the five charges and found true all but one of the special allegations, the exception being the allegation that the assault was committed in association with street gang activities. The court imposed a total prison term of 21 years 4 months.

II. DISCUSSION

Defendant contends there was insufficient evidence of "force or fear" to support his conviction for robbery.*fn1

" 'When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence--that is, evidence that is reasonable, credible, and of solid value--from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citation.] '[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact ...


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