Colusa — The inmate sitting on California’s death row for the 2004 murder of Merced Police Officer Stephan Gray was back in a Colusa County courtroom Thursday, alleging his trial more than 15 years ago was unfair.

Wearing a striped orange jailhouse jumpsuit and shackled at his ankles, Cuitlahuac Tahua “Tao” Rivera, 41, made his court appearance for a resentencing hearing, due to recent changes in California law regarding the handling of criminal enhancements.

An enhancement is an additional prison term added to an inmate’s base sentence. Rivera’s case came up for resentencing because some of the original enhancements in his 2007 conviction can now be dismissed under state law.

Per the updated law, Superior Court Judge Jeffrey A. Thompson on Thursday dismissed enhancements for being a member of a criminal street gang and being a felon with a prison prior at the time of Officer Gray’s murder.

But Rivera still has a death sentence. Thompson agreed with Merced County prosecutors that Rivera’s original death penalty is not subject to the recent changes in state law.

In his decision, Thompson said Rivera remains a threat to public safety and that he “exhibited a pattern of extreme violence perpetrated in the furtherance of a sick and twisted gang code.”

“Any reduction in punishment would put in jeopardy any of the surviving victims in this case as well as members of the general public,” the judge added.

Rivera was a 21-year-old gang member when he was pulled over by Gray while driving on Glen Avenue in central Merced on April 15, 2004. Rivera, who prosecutors said was “very familiar” with Gray, shot him twice. The fatal shot hit the 34-year-old officer just above his protective vest, severing his spine and causing him to fall, suffering injuries to his head and face, Thomas recounted.

“The attack on the officer was utterly unprovoked, and the defendant exhibited callousness by leaving the officer to die on the sidewalk,” Thompson said.

Only Merced Officer Ever Killed in Line of Duty

Gray served on the Merced Police Department’s Gang Suppression Unit and was well-liked and beloved by many, remembered for his radiant smile and kind personality. The native of Tulare is the only Merced Police Department officer to be killed in the line of duty.

Rivera fled Merced after the killing and later was captured. His trial was moved from Merced to Colusa County due to the high-profile nature of the case. In 2007, he was found guilty of first-degree murder with special circumstances for killing a law enforcement officer and being a felon in possession of a firearm. The jury also convicted him of several other charges for crimes he committed before Gray’s murder.

Merced County District Attorney Nicole Silveira told CVJC in an interview that she was relieved Rivera will stay on death row.

“It’s a horrible thing to have to call (Officer Gray’s widow) Michelle Gray and tell her ‘we believe the death penalty is safe, but they are looking at this again.’ It’s not a call we like to make,” Silveira said. “I can only imagine what she has to go through every time she gets a call like this.”

State legislators in recent years have passed several new laws aimed at reforming how defendants are sentenced. But victim rights advocates have said those changes put the needs of criminals over those of victims’ families.

The new laws that impacted the Rivera case were Assembly Bill 333 and Senate Bill 483, both of which took effect in January last year. AB 333 puts certain limitations on criminal street gang enhancements, while SB 483 repeals certain enhancements, like some prison priors.

Albert Smith, Rivera’s appointed defense attorney in the case, said even with Thursday’s dismissal of some enhancements, his client’s case is essentially unchanged.

Smith said even if Rivera’s death penalty sentence were somehow overturned, he would still likely serve life without the possibility of parole because he was convicted of murder with special circumstances.

“So most everything we talked about today was meaningless. In terms of practicality, it’s meaningless,” Smith said Thursday.

It’s unclear when Rivera, who is held at San Quentin State Prison, will be put to death. Gov. Gavin Newsom put a moratorium on the state’s death penalty in 2019.

Officer Gray’s widow, Michelle Gray, told CVJC she was frustrated by the changes in state law that made it possible for some of Rivera’s criminal enhancements to be dismissed. Still, she is relieved her husband’s killer remains on death row.

Gray, 54, said although she doubts Rivera will ever be put to death during her lifetime, knowing that he will never walk the streets again or be a free man brings a level of justice. “That’s what we focus on. Stephan would not want us to waste our energy being bitter or anything,” she said.

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Rivera Speaks, Expresses No Remorse

During Thursday’s hearing Judge Thompson asked Rivera whether he wished to make any statement to the court. Rivera stood up, calling the case a violation of his constitutional rights and criticizing his trial defense, which was led by Merced attorney C. Logan McKechnie.

Rivera expressed no remorse Thursday for killing Gray and alleged his defense told the court during trial he was guilty. “He purposely stated I committed everything,” Rivera said.

After Thursday’s hearing, CVJC spoke to McKechnie, who said Rivera’s allegation has no basis because both sides agreed during the trial that Rivera was the person who killed Gray – and that was never up for debate.

McKechnie said the question before the jury was whether Gray’s killing was premeditated.

McKechnie said his team met with Rivera during the trial and he clearly understood the defense strategy was to argue the killing wasn’t premeditated. “That was the whole theory of this case,” McKechnie told CVJC.

“The jury decided they didn’t like a gangbanger killing a cop and they found him guilty.”

Silveira disagreed with Rivera’s allegation that he was treated unfairly by the justice system, noting that death penalty cases typically have more checks and balances than others.“So the fact he is saying this just shows he has zero remorse and reflection on what he did. It’s appalling, quite frankly,” she said.

Michelle Gray said she wasn’t surprised about Rivera’s behavior in court Thursday, although the defendant himself admitted on tape to killing her husband.. “After what we went through in trial I wouldn’t think that much has changed (with him) through his incarceration, nor do I really care how he feels about things,” Gray said.

“He was quite proud of what he did, and I don’t think time would change that for someone who has evil in their heart like that.”

About the Author

Victor A. Patton is the engagement editor for the Central Valley Journalism Collaborative, a nonprofit newsroom based in Merced. Sign up for CVJC’s free Substack list here and follow CVJC on Facebook.