People v. Rivas CA4/1 ( 2023 )

Filed 7/6/23 P. v. Rivas CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D080600
Plaintiff and Respondent,
v. (Super. Ct. No. RIF1103048)
LILIA TERESA RIVAS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Riverside County,
Louis R. Hanoian, Judge. (Retired Judge of San Diego Sup. Ct. assigned by
the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Remanded with
directions.
Laura P. Gordon, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland, Assistant Attorney General, Robin
Urbanski and Brendon W. Marshall, Deputy Attorneys General, for Plaintiff
and Respondent.
Lilia Teresa Rivas appealed from a final judgment following a
postjudgment order denying her petition for resentencing under Penal Code1
section 1172.6.2
A jury convicted Rivas of murder (§ 187, subd. (a)) and attempted
murder (§§ 664, 187, subd. (a)) of two rival gang members. Rivas filed a
resentencing petition in 2021 pursuant to section 1172.6 addressing only her
second degree murder conviction. After Rivas filed the petition and before
her evidentiary hearing, Senate Bill No. 775 (Stats. 2021, ch. 551) (Senate
Bill 775) expanded section 1172.6 to include attempted murder. The trial
court denied Rivas’s petition as to the second degree murder conviction, and
it declined to address her attempted murder conviction because no order to
show cause (OSC) had been issued as to that conviction. Rivas contends, and
the People concede, the matter should be remanded with instructions for the
trial court to issue an OSC to hold an evidentiary hearing on whether Rivas
is entitled to resentencing relief on the attempted murder conviction. We
agree; thus, we remand the matter with instructions to issue an OSC for an
evidentiary hearing on the attempted murder conviction.
FACTUAL AND PROCEDURAL BACKGROUND
On November 4, 2013, a jury convicted Rivas of first degree murder
(§ 187, subd. (a)) and attempted murder (§§ 664, 187, subd. (a)) on a theory
that she was an aider and abettor of her husband, who shot and killed one
1 Statutory references are to the Penal Code unless otherwise specified.
2 Assembly Bill No. 200 (Stats. 2022, ch. 58, § 10) renumbered section
1170.95 to 1172.6, effective June 30, 2022.
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man and wounded another.3 The court sentenced Rivas to prison for 32
years to life. On May 4, 2016, the trial court reduced Rivas’s first degree
murder conviction to second degree murder because it had been based on the
natural and probable consequences theory of aiding and abetting, and
following People v. Chiu (2014) 59 Cal.4th 155, 159, superseded by statute as
stated in In re Ferrell (2023) 14 Cal.5th 593, a first degree premeditated
murder conviction cannot be based on a natural and probable consequences
theory of aiding and abetting. The court resentenced Rivas to 22 years to life.
On July 22, 2021, Rivas filed a petition for resentencing regarding her
second degree murder conviction pursuant to section 1172.6. Rivas’s
appointed counsel submitted briefing on January 12, 2022, after the
Legislature amended section 1172.6 to include attempted murder, arguing
Rivas should be resentenced on both counts. The People’s response, filed on
March 1, 2022, focused solely on Rivas’s second degree murder conviction, but
it also acknowledged the section 1172.6 amendment. The trial court issued
an OSC regarding why Rivas should not be resentenced, and it later denied
Rivas’s petition as to the second degree murder conviction, following an
evidentiary hearing held on June 24, 2022. The court did not address the
attempted murder conviction because no OSC had been issued as to that
conviction. Rivas timely appealed.
DISCUSSION
A. Guiding Principles
Effective January 1, 2019, Senate Bill No. 1437 (Senate Bill 1437)
narrowed liability for murder under the felony-murder rule and eliminated
3 The underlying facts of Rivas's crime are not relevant to the issue
before us.
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the natural and probable consequences doctrine. (§§ 188, subd. (a)(3) & 189,
subd. (e); People v. Anthony (2019) 32 Cal.App.5th 1102, 1147. (Anthony).)
Senate Bill 1437 accomplished this by amending section 188, which
defined malice, and section 189, which defined the degrees of murder, to
ensure that murder liability was not imposed on a person who was not the
actual killer, did not act with intent to kill, or was not a major participant in
the underlying felony who acted with reckless indifference to human life.
(Stats. 2018, ch. 1015, § 1, subd. (f); Anthony, supra, 32 Cal.App.5th at
p. 1147.)
Senate Bill 1437 also created section 1172.6, which provided a
procedure for convicted murderers who could not be convicted under the law
as amended to retroactively seek relief. (People v. Lewis (2021) 11 Cal.5th
952, 959. (Lewis).) If the petitioner makes a prima facie case showing that
the petitioner is entitled to relief, the court must issue an OSC and hold an
evidentiary hearing on the petition within 60 days after the OSC has issued.
(§ 1172.6, subds. (c) & (d)(1); Lewis, at p. 962.)
In October 2021, the Legislature passed Senate Bill 775 amending
section 1172.6 to expand eligibility for resentencing to persons convicted of
attempted murder under the natural and probable consequences doctrine,
effective on January 1, 2022. (2020-2021 Reg. Sess.; Stats. 2021, ch. 551, § 1.)
B. Analysis
The People concede, and we agree, that the trial court should issue an
OSC and conduct a hearing to evaluate whether Rivas is entitled to
resentencing relief on the attempted murder conviction.
On July 22, 2021, Rivas filed a petition for resentencing under
section 1172.6. The petition only addressed Rivas’s second degree murder
conviction, not the attempted murder conviction, because at the time
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section 1172.6 did not include attempted murder. Senate Bill 775, which
amended section 1172.6 to include attempted murder under the natural and
probable consequences doctrine became effective on January 1, 2022, after
Rivas filed her petition.
Although Rivas did not file subsequent or amended petitions after
Senate Bill 775 amended section 1172.6 to include attempted murder, section
1172.6 resentencing provisions applied to attempted murder at the time of
Rivas’s evidentiary hearing on June 24, 2022. Unless the record of conviction
proves the defendant is ineligible for resentencing as a matter of law, the
court must issue an OSC and conduct an evidentiary hearing. (Lewis, supra,
11 Cal.5th at p. 971.) Here, the briefs submitted by both Rivas and the
People before Rivas’s evidentiary hearing alerted the court that her
attempted murder conviction could be eligible for resentencing after Senate
Bill 775 amended section 1172.6 to include attempted murder. Defense
counsel’s brief argued Rivas should be resentenced on both counts, and the
People’s response acknowledged the section 1172.6 amendment that included
attempted murder. Thus, the court was aware that Rivas was eligible to seek
relief on the attempted murder conviction under section 1172.6. While Rivas
could file a new section 1172.6 petition to her attempted murder conviction,
judicial economy would not be served by requiring Rivas to file a new petition
because the law is clear that she is entitled to an evidentiary hearing.
Accordingly, the court must issue an OSC and conduct an evidentiary
hearing.
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DISPOSITION
The matter is remanded to the trial court with instructions to issue an
OSC and hold an evidentiary hearing on the attempted murder conviction.
In all other respects, the order is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
KELETY, J.
CASTILLO, J.
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