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Filed 10/28/26 P. v. Rivera CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.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