People v. Rizzo CA1/1

Filed 11/18/24 P. v. Rizzo CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

THE PEOPLE, A169236 Plaintiff and Respondent, v. (Contra Costa County Super. Ct. No. 05009320433) RANDY RAY RIZZO, Defendant and Appellant.

Randy Ray Rizzo appeals from a Penal Code1 section 1172.75 resentencing order. He asks us to remand his case so he can bring an as- applied equal protection challenge to his life without parole sentence in response to our Supreme Court’s recent opinion in People v. Hardin (2024) 15 Cal.5th 834 (Hardin). Rizzo forfeited the opportunity to raise such a challenge at resentencing by bringing a different equal protection claim instead—one Hardin essentially forecloses and Rizzo does not defend on appeal. We affirm the resentencing order, without prejudice to Rizzo’s pursuit of a new equal protection theory through a habeas corpus petition or appropriate motion.

1 Undesignated statutory references are to the Penal Code.

I. BACKGROUND When he was 24 years old, Rizzo killed his grandfather Orion Wesley Pannkuk and took a large amount of cash from Pannkuk’s sock.2 After a bench trial, Rizzo was convicted of first degree murder with a robbery-murder special circumstance (§§ 187, 190.2, subd. (a)(17)) and second degree robbery (former § 212.5, subd. (b)), both with enhancements. He was sentenced to life without parole for murder, plus one year for personal use of a deadly weapon (§ 12022, subd. (b)) and five years for a prior serious felony conviction (§ 667, subd. (a)). For robbery with the same enhancements, Rizzo received a concurrent term of 11 years, which was stayed. Sentences were stayed on enhancements for a prior prison term for robbery under former section 667.5, subdivision (b). Effective in 2020, the Legislature amended section 667.5, subdivision (b) to apply only to prior prison terms for sexually violent offenses. (Stats. 2019, ch. 590, § 1; People v. Jennings (2019) 42 Cal.App.5th 664, 681.) Section 1172.753 followed, invalidating enhancements under section 667.5, subdivision (b) for other offenses (§ 1172.75, subd. (a)) and requiring those serving a term for a judgment with such an enhancement to be resentenced (id., subds. (b), (c)). (People v. Montgomery (2024) 100 Cal.App.5th 768, 773, review granted May 29, 2024, S284662.) In 2022, the Department of Corrections and Rehabilitation notified the trial court that Rizzo was eligible for resentencing under section 1172.75.