People v. Rivera CA2/3

Filed 1/29/21 P. v. Rivera CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, B306080

Plaintiff and Respondent, Los Angeles County Super. Ct. No. BA284089 v.

JOSE RIVERA,

Defendant and Appellant.

APPEAL from orders of the Superior Court of Los Angeles County, Mark Hanasono, Judge. Affirmed.

Michele A. Douglass, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent. _________________________

BACKGROUND In 2013 a jury convicted defendant and appellant Jose Rivera of the first degree murder of Leon Felipe. The jury found true an allegation that Rivera personally and intentionally discharged a firearm causing Felipe’s death within the meaning of Penal Code section 12022.53, subdivision (d).1 After the jury convicted Rivera, he apparently replaced his court-appointed trial counsel with retained counsel. The trial court sentenced Rivera to 50 years to life in the state prison. The court ordered Rivera to pay a restitution fine of $10,000 under section 1202.4, subdivision (b). Neither Rivera nor the lawyer he had retained objected to the restitution fine. We affirmed Rivera’s conviction in February 2015. (People v. Rivera (Feb. 27, 2015, B250039) [nonpub. opn.] (Rivera I).)2 After Senate Bill No. 1437 (SB 1437) took effect, Rivera filed, on March 24, 2020, a petition for resentencing under section 1170.95. On a downloadable form, Rivera checked boxes 1, 2a, 3, 4, 5, and the sub-boxes under box 5. Box 2a states, “At trial, I was convicted of 1st or 2nd degree murder pursuant to the felony murder rule or the natural and probable consequences doctrine.” The first sub-box under box 5 states, “I was not the actual killer.” On April 16, 2020, the trial court summarily denied Rivera’s petition in a written order. Citing People v. Lewis (2020) 43 Cal.App.5th 1128, review granted Mar. 18, 2020, S260598, and People v. Verdugo (2020) 44 Cal.App.5th 320, review granted Mar. 18, 2020, S260493, the trial court noted a court considering a petition under section 1170.95 “may consider the record of