Filed 8/25/16 P. v. Rivas CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G052012

         v.                                                            (Super. Ct. No. 12WF2895)

JAMES ANTHONY RIVAS,                                                    OPINION

     Defendant and Appellant.




                   Appeal from a judgment of the Superior Court of Orange County, Lance
Jensen, Judge. Affirmed.
                   Richard Power, under appointment by the Court of Appeal, for Defendant
and Appellant.
                   Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Kristen Chenelia, Tami
Falkenstein Hennick and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and
Respondent.
              A jury convicted James Anthony Rivas of attempted murder, assault with a
deadly weapon, and mayhem. Rivas argues the court should have given attempted
robbery instructions because the prosecutor argued attempted robbery was a possible
motive for the attempted murder. We disagree and affirm the judgment.
                                          FACTS
              One October night, Rivas attacked a female jogger with a knife. Although
he managed to inflict several stab wounds, the victim escaped. The vicitm told
investigating officers she thought the man intended to rob her. She offered him her iPod
and cell phone, but that did not stop the attack.
              When police officers later located and arrested him, Rivas asked them,
“How did you catch me?” Rivas told the officers he had been drinking with friends all
day, and he sometimes forgets things after drinking. He only remembered coming home
and throwing his knife on the ground outside his house before going to bed.
              Officers found a couple of items that linked Rivas to the crime. They found
a knife near the location of Rivas’s arrest. The knife had Rivas’s and the victim’s blood
on it. In Rivas’s house, the officers found a pair of blood-stained gloves. The blood on
the gloves also matched Rivas and the victim.
              Rivas did not testify at trial. His friend, Justin Yorba, said he and Christian
Lloyd spent the afternoon of the attack with Rivas at Yorba’s house. At one point, they
drank some beer, and smoked a joint. Rivas showed Yorba his knife. Rivas and Lloyd
left Yorba’s house around 7:30 p.m. on their bicycles. Rivas told Yorba they were going
to Rossmoor to get some money. Yorba remembered that Rivas was very intoxicated.
                                       DISCUSSION
              The prosecutor charged Rivas with attempted murder, mayhem, and assault
with a deadly weapon. Defense counsel asked the court to instruct the jury on attempted
robbery as a lesser offense of attempted murder. The court refused because attempted
robbery is not a lesser included offense of attempted murder.

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              Rivas acknowledges he was not charged with attempted robbery, but claims
the prosecutor’s argument to the jury was “accusatory in nature” and “functionally very
much like an accusation made in writing in a filed information.” Rivas contends the
court erred by refusing to instruct on attempted robbery, and by not giving the jury an
“attempted robbery verdict option.” We are not persuaded.
              The prosecution has broad discretion in deciding which charges to bring
against a defendant and the “courts do not generally supervise [this] ‘purely prosecutorial
function[].’ [Citations.]” (People v. Ceja (2010) 49 Cal.4th 1, 7; People v. Richardson
(2008) 43 Cal.4th 959, 1013.) Due process, however, imposes a sua sponte duty on trial
courts to instruct the jury on a lesser included offense “when the record contains
substantial evidence of the lesser offense . . . .” (People v. Moore (2011) 51 Cal.4th 386,
408-409.)
              In contrast, “a trial court has no sua sponte duty to instruct on lesser related
offenses.” (People v. Lam (2010) 184 Cal.App.4th 580, 583 [defendant has no right to
instructions on lesser related offenses even if he requests the instruction and it would
have been supported by substantial evidence].) A lesser related offense is one closely
related to the charged offense, but the evidence must provide a basis for finding the
defendant guilty of the related offense and innocent of the charged offense. (People v.
Babaali (2009) 171 Cal.App.4th 982, 1000, disapproved on another point in People v.
Robinson (2016) 63 Cal.4th 200, 209, fn. 4.)
              Here, the court correctly denied Rivas’s request for an attempted robbery
instruction. Attempted robbery was not a charged offense, nor was it a lesser included
offense of attempted murder. (See Pen. Code, §§ 21a, 187, 211.) Even so, Rivas asserts
the prosecutor’s argument to the jury triggered the court’s duty to instruct on attempted
robbery under People v. Birks (1998)19 Cal.4th 108. But, Birks does not aid Rivas. It
held instructions on uncharged lesser-related crimes are improper unless agreed to by the
prosecution. (Birks, at pp. 137-138.) In this case the prosecution objected.

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                                  DISPOSITION
            The judgment is affirmed.


                                            THOMPSON, J.

WE CONCUR:



ARONSON, ACTING P. J.



IKOLA, J.




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