People v. Rios CA2/3

Filed 4/29/15 P. v. Rios CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

THE PEOPLE, B258287

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA208429) v.

JESUS RIOS,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, William C. Ryan, Judge. Affirmed. Cheryl Lutz, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. _____________________

Defendant and appellant Jesus Rios appeals the trial court’s denial of his motion for recall and resentencing pursuant to Proposition 36, the Three Strikes Reform Act of 2012. We affirm. FACTUAL AND PROCEDURAL BACKGROUND A jury convicted Rios of attempted second degree robbery (Pen. Code, §§ 664, 211)1 and simple assault (§ 240). It acquitted him of assault with a deadly weapon or by means likely to produce great bodily injury (§ 245, former subd. (a)(1)), and found not true the allegation that he personally used a dangerous and deadly weapon during the offenses (§ 12022, subd. (b).) After Rios waived his right to a jury trial, the trial court found he had two sustained juvenile adjudications for robbery. It denied Rios’s Romero motion2 and sentenced him to a term of 25 years to life pursuant to the “Three Strikes” law. We affirmed the judgment in an unpublished opinion. (People v. Rios (Sept. 27, 2002, B150077) [nonpub. opn.].)3 On August 1, 2014, Rios petitioned for recall of his sentence and resentencing pursuant to the Three Strikes Reform Act of 2012 (Proposition 36), section 1170.126. On August 8, 2014, the trial court denied the petition with prejudice. It concluded Rios was ineligible for resentencing because his current conviction was for attempted robbery, a serious felony (§§ 1192.7, subds. (c)(19) & (39), 1170.126, subd. (e)(1).) Rios filed a timely notice of appeal on August 19, 2014. (See Cal. Rules of Court, rule 8.308(a).)