People v. Rubio CA1/4

Filed 10/2/24 P. v. Rubio CA1/4 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, Plaintiff and Respondent, A168294 v. ROBERT RUBIO, (Alameda County Super. Ct. No. 148264D) Defendant and Appellant.

Defendant Robert Rubio appeals the order summarily denying his petition for resentencing pursuant to Penal Code section 1172.6.1 We find no error and affirm. BACKGROUND On May 29, 2007, Robert Rubio was convicted of first degree murder. (§ 187, subd. (a).) The jury found that he did not personally discharge a firearm (§ 12022.53, subds. (c), (d)), but that he personally used a firearm in

1 Undesignated statutory references are to the Penal Code. Originally numbered section 1170.95 when enacted in 2018 as Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Stats. 2018, ch. 1015, § 4) (Senate Bill 1437), the statute was renumbered to section 1172.6 effective June 30, 2022 (Stats. 2022, ch. 58, § 10). Because this statutory change does not affect our consideration of the issues raised in this appeal, we refer to the statute as section 1172.6 throughout the rest of this opinion even though it was referenced in the proceedings below by its former enumeration.

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the commission of the crime (§§ 12022.5, former subd. (a)(1), 12022.53, subd. (b)), and that he was guilty of possession of a firearm by a felon (former § 12021, subd. (a)(1), repealed and reenacted by Stats. 2010, ch. 711, §§ 4 & 6, eff. Jan. 1, 2012). Rubio was sentenced to a total term of 35 years, 8 months to life in prison. In 2011, this court affirmed his convictions on direct appeal. On January 19, 2022, Rubio filed a petition for resentencing.2 The People filed a response to the petition and the court appointed counsel for Rubio, who filed a brief on his behalf. The court summarily denied the petition, finding that Rubio could not make a prima facie showing that he was entitled to resentencing because he was convicted of aiding and abetting, with express malice, a first degree murder. Because the trial court dismissed Rubio’s section 1172.6 petition at the prima facie stage, an extended summary of the evidence from his trial is not relevant to the issues raised in this appeal. (Beaudreaux, supra, 100 Cal.App.5th 1227, 1238 [consideration of “the factual summar[y]” in an appellate opinion is prohibited at the prima facie stage].) For purposes of providing context, it is sufficient to note that the evidence at his trial established that Rubio and his three codefendants got out of a car and two of the codefendants shot and killed the victim.