People v. Sosa CA2/6 ( 2022 )

Filed 8/29/22 P. v. Sosa CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B319942
(Super. Ct. No. 1214502)
Plaintiff and Respondent, (Santa Barbara County)
v.
LUIS GABRIEL RIO SOSA,
Defendant and Appellant.
Luis Gabriel Rio Sosa appeals from an order denying his
petition for resentencing pursuant to Penal Code section 1172.6.
(former § 1170.95.)1 We dismiss the appeal.
In 2009, a jury convicted appellant of premeditated first
degree murder (§§ 187, subd. (a), 189), with special findings that
he personally and intentionally discharged a firearm causing
death (§ 12022.53, subd. (d)). He was sentenced to 50 years to life
in state prison. We affirmed appellant’s conviction. (People v.
1 All further statutory references are to the Penal Code.
Luis Gabriel Rio Sosa (Jan. 24, 2011, B219803) [nonpub. opn.]
(Sosa).)
In November 2021, appellant, acting in propria persona,
filed a petition for resentencing pursuant to section 1172.6. In
his petition, he claimed he was convicted of first degree murder
“pursuant to the felony murder rule or the natural and probable
consequences doctrine,” and could not now be convicted of murder
in light of the changes made to sections 188 and 189 as part of
Senate Bill No. 1437.
The People opposed the motion because appellant was not
convicted under a theory of felony murder or natural and
probable consequences. Instead, he was the actual killer, who
acted with malice, and could still be convicted of murder under
the law as amended.
Following a hearing, the trial court summarily denied
appellant’s petition for resentencing finding that he was the
“shooter” in a “deliberate” and “premeditated murder.”
We appointed counsel to represent appellant in this appeal.
After an examination of the record, counsel filed an opening brief
that raises no arguable issues. We advised appellant he had 30
days within which to personally submit any contentions or issues
that he wished us to consider. He subsequently filed a five-page
handwritten supplemental brief.
Because this is an appeal from an order denying
postconviction relief, appellant is not entitled to our independent
review pursuant to People v. Wende (1979) 25 Cal.3d 436. (People
v. Serrano (2012) 211 Cal.App.4th 496, 501 (Serrano); People v.
Cole (2020) 52 Cal.App.5th 1023, 1039-1040, review granted Oct.
14, 2020, S264278.) We do, however, consider the issues raised in
his supplemental brief. (Cole, at p. 1040.)
2
Appellant makes a number of arguments attacking the trial
court’s denial of his petition for resentencing at the prima facie
stage without issuing an order to show cause and holding an
evidentiary hearing. However, a trial court may appropriately
deny a petition at the prima facie stage if the petitioner is
ineligible for relief as a matter of law. (People v. Lewis (2021) 11
Cal.5th 952, 972, fn. 6 (Lewis).)
As Lewis explained, “‘[a] court should not reject the
petitioner’s factual allegations on credibility grounds without
first conducting an evidentiary hearing.’ [Citations.] ‘However, if
the record, including the court’s own documents, “contain[s] facts
refuting the allegations made in the petition,” then “the court is
justified in making a credibility determination adverse to the
petitioner.”’” (Lewis, supra, 11 Cal.5th at p. 971.)
The record of conviction in this case conclusively
establishes that appellant is ineligible for relief as a matter of
law because the jury found him guilty of premeditated first
degree murder with the special finding that he personally used a
firearm to commit the murder offense. (See Sosa, supra,
B219803.) There was no error.
Since nothing in appellant’s supplemental brief raises an
arguable issue on appeal from the order denying his petition
for resentencing, we dismiss the appeal. (Serrano, supra, 211
Cal.App.4th at pp. 503-504.)
3
DISPOSITION
The appeal is dismissed.
NOT TO BE PUBLISHED.
YEGAN, J.
We concur:
GILBERT, P. J.
PERREN, J.*
*Retired Associate Justice of the Court of Appeal, Second Appellate District,
assigned by the Chief Justice pursuant to article VI, section 6 of the California
Constitution.
4
Pauline Maxwell, Judge
Superior Court County of Santa Barbara
______________________________
Richard B. Lennon, under appointment by the Court of
Appeal, for Defendant and Appellant.
No appearance for Respondent.