Rivera

Richard Paul Rivera was convicted of first degree burglary (Pen. Code, § 459) and assault with intent to commit murder (§ 217), the latter being accompanied by three enhancing allegations. He challenges the convictions on multiple grounds including impermissibly vindictive prosecution, prejudicial denial of a continuance to conduct a lineup, prejudicially admitting his postarrest statement taken in violation of Miranda, and instructional error regarding malice. We conclude the relevant facts show the addition of the count alleging assault with the intent to commit murder after Rivera rejected the prosecutor’s second plea bargain offer was not impermissibly vindictive and did not violate due process of law as guaranteed under either the United States or California Constitutions. We also find Rivera’s remaining contentions to be meritless and affirm.

Factual Background

When Julie Rogers returned to her apartment on August 30, 1980, at about 11 p.m., she noticed an apartment window open with the screen missing. She then heard noises from inside as if someone hurried to a window, opened it, and jumped outside causing a crashing sound. She found no one inside, but the place…