P. v. Rivera

Filed 1/22/07  P. v. Rivera CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b).  This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

            APPEAL from the Superior Court of Riverside County.  Patrick F. Magers, Judge.  Affirmed.

            Richard Schwartzberg, under appointment by the Court of Appeal, for Defendant and Appellant.

            Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Pamela Ratner Sobeck, Supervising Deputy Attorney General, and Christopher P. Beesley, Deputy Attorney General, for Plaintiff and Respondent.

            Defendant Enrique Rivera appeals from a jury conviction for first degree murder.  (Pen. Code, §  187, subd. (a).)  As a result of the conviction, defendant is serving an indeterminate term of 26 years to life.  He argues his conviction should be reversed because the trial court erroneously admitted prior acts evidence which prejudiced his defense.

FACTUAL AND PROCEDURAL HISTORY

            Defendant and the victim were involved in a homosexual relationship and began living together in the victim's house about six months before the murder.  A male roommate also lived in the house and did chores in exchange for rent.  The roommate was a friend of the victim's and had been living in the victim's house for about five years.  Although he was aware the victim was homosexual and romantically involved with defendant, the roommate testified he was heterosexual and had never had a homosexual relationship with the victim. 

            Several witnesses, including the roommate, testified at trial about incidents prior to the murder indicating the relationship between defendant and the victim was troubled and violent.  Testimony also established the victim was fearful of his safety prior to the murder.  For example, a neighbor testified the victim came to her house about two weeks before the murder wearing only sport shorts, which was out of character.  He appeared nervous and upset, which was also out of character as he was usually calm, happy, and friendly.  He said he did not â€