A lawyer for a male escort found guilty of murdering a Bay Point man and stealing his solid gold flute in 2008 said Monday he will appeal his client's conviction to the California Supreme Court.
Stephen Bedrick, an attorney for Alejandro Rivera, said he will ask the high court to review a decision in which a state appeals court in San Francisco last week upheld Rivera's first-degree murder conviction.
Rivera, 26, of Vallejo, was convicted in Contra Costa County Superior Court last year of murdering Theodore Neff, 66, by strangling him, and of then setting his townhouse on fire on Dec. 3, 2008.
In addition to first-degree murder, Rivera was found guilty of burglary, grand theft and arson. He was sentenced to 33 years to life in prison.
Rivera, who advertised escort and sexual services on Craigslist, also had a job as a janitor and was married and had a child.
Neff, a retired bank executive and amateur musician, met him through the ads and the two began a sexual relationship in mid-2008, according to Rivera's testimony at his trial.
Rivera was arrested two days after the slaying, after police traced his efforts to sell the gold flute to a flute dealer. He also stole Neff's sterling silver flute and laptop computers.
During his trial, Rivera admitted strangling Neff but claimed he acted in the heat of passion after Neff told him he might have AIDS. His defense lawyers argued for a conviction of the lesser crime of manslaughter rather than murder.
In his appeal to the state Court of Appeal, Rivera claimed the trial jury was prejudiced by seeing him re-enact the strangling by using a small, unclothed female mannequin supplied by a prosecutor.
The re-enactment was demanded by the prosecutor during cross-examination after Rivera testified in his own defense.
A three-judge panel of the appeals court unanimously rejected Rivera's claim in a ruling issued on Wednesday.
Justice Robert Dondero wrote that the re-enactment should not have been allowed because it was likely to enflame the jury's emotions, didn't duplicate the actual circumstances of the strangling and resulted in a "rather absurd, indecorous courtroom spectacle."
But the panel said the re-enactment didn't make a difference to the jury's decision to convict Rivera of murder rather than manslaughter because there was "overwhelming evidence" that he "intentionally strangled Neff, stole his flutes and computers and set fire to his residence."
The court said that evidence Rivera acted in the heat of passion, rather than out of intent to kill, was "exceedingly weak."
The justices noted that Rivera testified that he returned to attack and kill Neff after initially choking him and starting to leave the house, and then stole the items and set fire to the house. Rivera also never had himself tested for AIDS, the court said.
Bedrick said, "I'm disappointed. The court said that allowing this absurd demonstration to be performed was an error and was prejudicial.
"That should be enough for a reversal and a new trial," Bedrick said.
Neff bought the gold flute for $23,000 in 2007 from Nagahara Flutes in Chelmsford, Mass., according to saleswoman Geraldine Morillo-Barravarte, who said the instrument was solid gold with a silver mechanism and silver keys.