People v. Rios CA2/2

Filed 6/21/23 P. v. Rios CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO
THE PEOPLE, B324788
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA085730)
v.
REYES RIOS, JR.,
Defendant and Appellant.
THE COURT:
Defendant and appellant Reyes Rios Jr. (defendant)
appeals from the denial of his petition to be resentenced pursuant
to the provisions of Penal Code section 1170.18.1 Defendant’s
appointed counsel found no arguable issues and filed a brief
requesting we follow the procedures set forth in People v.
Delgadillo (2022) 14 Cal.5th 216 (Delgadillo). Following the
1 All further unattributed code sections are to the Penal Code
unless otherwise stated.
standard articulated in Delgadillo, we considered defendant’s
supplemental brief and conducted a limited review of the record.
(See Delgadillo, at pp. 230–232.) Finding no merit to defendant’s
appeal, we affirm the order.
BACKGROUND
In 2012, a jury convicted defendant of three counts of
attempted murder, and found the crimes were willful, deliberate,
and premeditated (§§ 664/187, subd. (a)). The jury also found
defendant guilty of one count of shooting at an inhabited dwelling
(§ 246), one count of assault with a semiautomatic firearm (§ 245,
subd. (b)), and one count of possession of a firearm by a felon
(former § 12021, subd. (a)(1)). It was found as to each count that
the offense was committed for the benefit of, at the direction of,
and in association with a criminal street gang.
Defendant was charged with having suffered a prior
conviction of robbery in violation of section 211, a serious or
violent crime within the meaning of section 1170.12, subdivisions
(a) through (d) and section 667, subdivisions (b) through (i) (the
Three Strikes law). After defendant waived a jury trial on the
prior conviction the trial court found the allegation true.
Defendant was sentenced to a total of three consecutive life
terms plus 37 years and four months in state prison. On direct
appeal the judgment was affirmed by this court in People v.
Reyes, Jr. (Oct. 23, 2013, B239242) [nonpub. opn.].
On August 29, 2022, defendant filed a petition for reduction
of his conviction of assault with a semiautomatic firearm to a
misdemeanor and for resentencing. The trial court summarily
denied the petition on September 6, 2022.
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Defendant filed a timely notice of appeal from the order of
denial.
DISCUSSON
After examination of the record, appointed counsel filed an
opening brief raising no issues. Where, as here, appointed
counsel finds no arguable issues in an appeal that is not the first
appeal after conviction, we are not required to conduct an
independent review of the record. (See Delgadillo, supra, 14
Cal.5th at p. 226.) However, even if we do not independently
review the record to identify unraised issues in such a case, we
give the defendant the opportunity to file his or her own
supplemental brief or letter. We then evaluate any specific
arguments raised. (See id. at p. 232.) Here, counsel provided
defendant with a copy of the record on appeal and informed him
of his right to file his own supplemental brief. On April 10, 2023,
we also notified defendant of counsel’s brief, allowed defendant
time to file his own letter or brief stating any grounds for an
appeal, contentions, or arguments that he wished to be
considered, and advised him that if no supplemental brief or
letter is timely filed the court may dismiss the appeal as
abandoned. Defendant then filed a supplemental brief within the
time allowed.
Defendant contends he is entitled to relief under section
1170.18 because the jury found not true the allegation that he
personally used a firearm during the commission of the assault
with a semiautomatic firearm. Defendant reasons that as he did
not personally use a firearm, he could be guilty of only simple
assault, a misdemeanor. (See §§ 240, 241.) Defendant also
contends the trial evidence was insufficient to show he
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participated in the shooting or that he shared the mental state of
the actual perpetrator. Defendant refers to testimony in the trial
transcript, and to the extent it is not in the record on appeal,
defendant consents to use of facts in the appellate opinion.
Proposition 47, approved in November 2014, “makes certain
drug-and theft-related offenses misdemeanors, unless the
offenses were committed by certain ineligible defendants. These
offenses had previously been designated as either felonies or
wobblers (crimes that can be punished as either felonies or
misdemeanors).” (People v. Rivera (2015) 233 Cal.App.4th 1085,
1091.) Proposition 47 “also added . . . section 1170.18, which
permits those previously convicted of felony offenses that
Proposition 47 reduced to misdemeanors to petition to have such
felony convictions resentenced or redesignated as misdemeanors.”
(People v. Buycks (2018) 5 Cal.5th 857, 871, fn. omitted.) The
offenses amended or added by Proposition 47 are sections 459.5,
473, 476a, 490.2, 496, and 666, and Health and Safety Code
sections 11350, 11357, and 11377. Section 1170.18 does not list
section 245, subdivision (b), as one of the code sections amended
or added by Proposition 47. As defendant was not convicted of a
felony offense that Proposition 47 reclassified as a misdemeanor,
he is not statutorily eligible for relief under section 1170.18.
In addition, defendant’s contention that the facts were
insufficient to support his conviction appears to be a collateral
attack on the judgment. Defendant does not provide any
authority permitting such a challenge, and we find nothing in
section 1170.18 that might authorize such a collateral attack. In
his direct appeal, defendant had the right to raise any issues
relating to his conviction, including challenging the sufficiency of
the evidence and whether he had obtained a fair trial. Indeed, in
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his appeal from the judgment, this court found substantial
evidence to support defendant’s conviction of assault with a
semiautomatic firearm. (People v. Reyes, Jr., supra, B239242.)
As the judgment of conviction was affirmed on appeal and has
long since been final, we decline to undertake a review for the
sufficiency of the trial evidence to support defendant’s conviction.
(See generally, People v. Senior (1995) 33 Cal.App.4th 531,
536–538.)
DISPOSITION
The order denying defendant’s petition for resentencing
pursuant to Penal Code section 1170.18 is affirmed.
NOT TO BE PUBLISHED.
____________________________________________________________
LUI, P. J. ASHMANN-GERST, J. CHAVEZ, J.
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