People v. Rivera CA2/4 ( 2023 )

Filed 6/16/23 P. v. Rivera CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 FOUR
THE PEOPLE, B322198
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA281996)
v.
JESUS RIVERA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County,
Michael E. Pastor, Judge. Dismissed.
Joanna McKim, under appointment by the Court of Appeal, for
Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Jesus Rivera appeals the order of the trial court denying his petition for
resentencing under Penal Code1 section 1172.6 (former section 1170.95).2 We
dismiss the appeal as abandoned.
BACKGROUND
In April 2005, Robert Garcia was shot in a drive-by shooting. Rivera
was identified as the shooter.
In August 2005, a jury convicted Rivera of attempted premeditated
willful and deliberate murder (§§ 664/187, subd. (a)), assault with a firearm
(§ 245, subd. (a)(2)), and discharge of a firearm from a motor vehicle (§ 12034,
subd. (c)). The jury found true allegations that Rivera committed all three
offenses for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)) and
that in the commission of these offenses he personally inflicted great bodily
injury (§ 12022.7, subd. (a)). The jury also found true firearm use allegations.
(§§ 12022.5, subd. (a), 12022.53, subds. (b)-(d).) The trial court sentenced
Rivera to 40 years to life in state prison.
On appeal, the assault conviction was reversed. (People v. Rivera (Apr.
25, 2007, B187176) [nonpub. opn.].) The judgment was otherwise affirmed.
On January 13, 2022, Rivera filed, in pro. per., a petition for
resentencing pursuant to section 1172.6. Among other allegations, Rivera
alleged he “could not presently be convicted of . . . attempted murder because
of changes made to Penal Code §§ 188 and 189, effective January 1, 2019.”
Rivera checked the box on the petition asking for appointed counsel.
1 All statutory references are to the Penal Code unless otherwise stated.
2 Effective June 30, 2022, section 1170.95 was renumbered section
1172.6, with no change in text (Stats. 2022, ch. 58, § 10). For ease of
reference, we will refer to the section by its new numbering only.
2
The trial court appointed counsel, who subsequently filed a brief in
support of the petition. The People filed a response. On June 21, 2022, the
court denied the petition, finding that Rivera failed to make a prima facie
case for relief. The court reasoned that the jury was never instructed on the
felony murder rule, natural and probable consequences doctrine, aider and
abettor liability, or imputed malice. Rather, the jury found true that Rivera
“was the actual shooter and personally used, . . . and discharged a firearm
causing great bodily injury to the alleged victim.”
Rivera timely filed a notice of appeal.
DISCUSSION
We appointed counsel to represent Rivera on appeal. After
examination of the record, his attorney filed an opening brief raising no
issues and asking this court to independently review the record. Our
Supreme Court has established a procedural framework to follow when
appointed counsel finds no arguable issues. (People v. Delgadillo (2022) 14
Cal.5th 216, 221–222 (Delgadillo).) Under that framework, we gave notice to
Rivera that he had the right to file a supplemental letter or brief, or his
appeal could be dismissed.
If the defendant responds to the notice, the court is required to
evaluate the arguments raised in the supplemental brief or letter and must
issue a written opinion. (Delgadillo, supra, 14 Cal.5th at p. 232.) If the
defendant does not respond to the court’s notice, then the court may exercise
its discretion to dismiss the appeal as abandoned. (Ibid.) If it chooses to
dismiss, it may do so with or without a written opinion. (Ibid.)
Rivera was notified of the court’s policy and did not file a supplemental
letter or brief.
3
In accordance with the procedures articulated above, we dismiss the
appeal as abandoned. And even if we were to look at the merits, the trial
court’s order is indisputably correct because Rivera is statutorily ineligible for
relief. Under the ordinary principles governing statutory interpretation, a
petitioner is eligible for relief under section 1172.6 if he could not be
convicted at present because of changes to the law made by Senate Bill No.
1437 (2017-2018 Reg. Sess.). (People v. Lewis (2021) 11 Cal.5th 952, 959.)
Here, the jury found Rivera was the actual shooter.
DISPOSITION
The appeal is dismissed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ZUKIN, J.*
We concur:
CURREY, Acting P. J.
MORI, J.
* Judgeof the Los Angeles County Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
4