People v. Rivera CA4/1
CourtCalifornia Court of Appeal
Date FiledOctober 28, 2026
DocketD085272
StatusUnpublished
📰 News Coverage: Read the LAWS.com news report on this case
Full Opinion
Filed 10/28/26 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or or dered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D085272
Plaintiff and Respondent,
(San Diego Super. Ct.
v. No. SCN446677)
AXEL GERARDO RIVERA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Saba Sheibani, Judge. Affirmed.
Jean Matulis, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant
Attorney General, Arlene A. Sevidal, Assistant Attorney General, A. Natasha
Cortina and Alan L. Amann, Deputy Attorneys General, for Plaintiff and
Respondent.
Alex Gerardo Rivera was tried and convicted in the superior court for
multiple offenses committed while he was 17 years old, including attempted
murder. He agreed to a special jury instruction requested by the prosecution
stating that his age was irrelevant for any of the charged offenses other
than being a minor in possession of a firearm. Rivera now challenges this
instruction on the theory that jurors should have been allowed to consider his
age and the general characteristics of a teenager’s brain when assessing the
reasonableness of his actions with respect to the other offenses.
Apart from his chronological age, however, there was no evidentiary
basis for Rivera’s counsel to have argued to the jury how adolescent brain
development affected Rivera’s actions in this case. There was no expert
testimony. Neither Rivera nor anyone else testified about his thought
processes during any of the crimes. And his appellate counsel does not
explain how the mere fact that he was 17 years old could have caused the
jury to reach a different outcome on any count. Thus, any theoretical error
in the instruction was harmless, and the judgment must be affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
A jury convicted Rivera of multiple offenses arising out of four separate
incidents, including one count each of brandishing a firearm (Pen. Code,
§ 417, subd. (a)(2)), making a criminal threat (§ 422), attempted murder
(id., §§ 187, subd. (a), 664), assault with a deadly weapon (id., § 245, subd.
(a)(2)), possessing/exhibiting a firearm on school grounds (§ 626.9, subd. (b)),
two counts each of assault with a semiautomatic firearm (id., § 245, subd.
(b)), possession of a firearm by a minor (id., § 29610), and prohibited
possession of a firearm (id., § 29815). As to one of the incidents, he was
acquitted of attempted murder and a mistrial was declared on the charge
2
of whether Rivera assaulted the victim with a deadly weapon. Several gun-
related and great bodily injury enhancements were also found true. The
court sentenced Rivera to an aggregate term of 48 years in prison.
Rivera was 17 years old when he committed the charged offenses.
Presumably because his age was not an element of any counts other than
being a minor in possession of a firearm (Pen. Code, § 29610), the People
asked the court to read a special jury instruction that stated, in relevant
part: “You may not consider the defendant’s age for any purpose, other
than determining whether he was a minor at the time of the offenses alleged
in Counts 2 and 13.” The court granted the prosecutor’s request after Rivera
agreed to the proposed language.
The only testimony elicited about Rivera’s age was his mother’s
confirmation for the prosecutor that he was 17 years old when the offenses
were committed. The court did not receive into evidence any information
about Rivera’s mental development or level of maturity. Nor did any witness
discuss brain development in teenagers.
During his closing argument, Rivera’s counsel told the jury that it was
not to decide was whether his client, “as a teenager, was hanging out with
the wrong crowd,” “listening to the wrong people,” or “guilty of making some
terribly bad decisions.” Counsel went on to focus mostly on the attempted
murder charges, arguing that the prosecution failed to prove beyond a
reasonable doubt that his client intended to kill either victim. He also argued
that the evidence could be interpreted to show that Rivera acted in either
perfect self-defense, imperfect self-defense, in defense of another, or under
the heat of passion—theories presented to the jury that would result in no or
lesser culpability for Rivera. The jury necessarily rejected these theories in
returning its guilty verdicts.
3
DISCUSSION
Rivera now contends that the special jury instruction erroneously and
prejudicially misstated the law. Relying on statements from judicial opinions
and academic journals concerning adolescent brain development and
maturation, he claims that his “youth” was a relevant consideration as to his
states of mind on the brandishing, attempted murder, and assault offenses
he was charged with, including any lesser included offenses, because they
each required assessing the objective reasonableness of his actions. He also
contends that different results on the offenses of conviction were likely had
counsel been able to fully argue the impact of “all the elements expected to
operate on his mind, which was a juvenile mind.” The People counter that
any error was harmless because there was no evidence to suggest that his
age played a role in his commission of any of these offenses.1
We will reverse the judgment if the trial court committed a prejudicial
error in giving the special jury instruction. (People v. Humphrey (1996) 13
Cal.4th 1073, 1089 (Humphrey).) The harmless error standard announced in
People v. Watson (1956) 46 Cal.2d 818 applies when a court improperly limits
how a jury may use the evidence. (Humphrey, at p. 1089.) Accordingly, we
will set aside Rivera’s convictions only if we find “a reasonable probability the
error affected the verdict[s] adversely.” (Ibid.)
Assuming without deciding that the court’s instruction was erroneous,
a better outcome for Rivera was not reasonably probable. Starting with the
1 Rivera has not forfeited his challenge because he claims the court
incorrectly stated the law, which is an exception to the general rule that
an objection is required to preserve appellate review of a jury instruction.
(People v. Lee (2011) 51 Cal.4th 620, 638 [general rule]; People v. Capistrano
(2014) 59 Cal.4th 830, 875, fn. 11 [exception].)
4
language of the special instruction—which appears to preclude the jury
from considering his “age” in connection with counts other than a minor in
possession of a firearm—Rivera does not explain how the mere fact that
he was 17 years old could have resulted in more favorable outcomes, even
allowing for the fact that jurors are permitted to consider their “life
experience” in evaluating the evidence. (People v. Wilson (2008) 44 Cal.4th
758, 823.) Instead, he makes the broader argument that this instruction
erroneously prevented his trial counsel from relying on his “youth”—
which includes his age and the general characteristics of adolescent brain
development that he presumes applied to him at the time he committed
the offenses. He recites observations by judges and scholars that, as
compared to mature adults, youthful offenders are more likely to engage in
risky behaviors, more inclined to respond to coercive pressures, and less
capable of exercising self-control because their brains are less developed.
According to Rivera, his jury was required to consider these characteristics
for any charged offense where the reasonableness of his actions was an
element.2
Rivera supports his position on prejudice by pointing us to appellate
decisions that he contends addressed analogous circumstances. Humphrey,
supra, 13 Cal.4th at pages 1082–1083 is cited for the proposition that
reasonableness of the need for self-defense must be determined “ ‘from
the point of view of a reasonable person in the position of the defendant.’ ”
2 For example, Rivera contends that the reasonableness of his belief
in the need to defend himself or someone else—relevant to the charges
of attempted murder, assault with a firearm, and brandishing a firearm
(CALCRIM Nos. 604, 875, 983, 3470)—must be evaluated with these mental
traits in mind.
5
The trial court there erred in instructing the jury not to consider for this
purpose the evidence that the defendant exhibited symptoms of “battered
woman’s syndrome.” (Ibid.) In People v. Ocegueda (2016), 247 Cal.App.4th
1393, 1407, the trial court erred in prohibiting the jury from using evidence of
the defendant’s mental disabilities to assess the reasonableness of his belief
in the need for self-defense. And the trial court in People v. Sotelo-Urena
(2016) 4 Cal.App.5th 732, 756–757 mistakenly told the jury not to rely on
expert testimony about the defendant’s chronic homelessness when
deliberating his subjective belief in the need for self-defense.
Although we do not take issue with these general legal principles, these
cases are inapposite because here, in contrast, there was no evidence to
support the arguments Rivera believes his trial counsel should have been
allowed to make about teenage brain development. It is fundamental that
counsel’s argument must be based on evidence in the record and inferences
that can reasonably be drawn from those facts. (See People v. Modesto (1967)
66 Cal.2d 695, 707–708.) Lacking a proper evidentiary basis, Rivera’s trial
counsel could not have made the arguments his appellate lawyer proposes
and there is, accordingly, no prejudice that requires reversal. (People v.
Ponce (1996) 44 Cal.App.4th 1380, 1390 [“Trial judges have the duty
to ... prohibit argument which is not supported by substantial evidence”].)
DISPOSITION
The judgment is affirmed.
DATO, Acting P. J.
WE CONCUR:
BUCHANAN, J.
CASTILLO, J.
6