People v. Del Rio CA4/1

Filed 8/5/21 P. v. Del Rio CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D078225

Plaintiff and Respondent,

v. (Super. Ct. No. CR40676)

RAMON DEL RIO,

Defendant and Appellant.

APPEAL from an order of the Superior Court San Diego County, Peter C. Deddeh, Judge. Reversed and remanded with directions. Daniel J. Kessler, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Heather M. Clark, Deputy Attorneys General, for Plaintiff and Respondent.

In 1978, Ramon Del Rio was convicted of two counts of first degree

murder (Pen. Code,1 § 187). He was sentenced to life with the possibility of parole. Del Rio appealed and this court affirmed his convictions in an unpublished opinion filed May 16, 1979. (People v. Del Rio (May 16, 1979,

4 Crim. No. 8866) [nonpub. opn.].)2 In 2019, Del Rio filed a pro. per. petition for resentencing under section 1170.95. The court appointed counsel, received briefing from the parties, held a telephonic hearing and then denied the petition. The court found Del Rio was the person who hired the people to kill and rob the victims and was a direct aider and abettor. As such, the court found Del Rio to be ineligible for relief under section 1170.95. Del Rio filed a timely notice of appeal. The record in this case is limited due to the 43-year lapse between the convictions and the postjudgment petition for resentencing. The parties in the trial court were not able to locate the jury instructions and the closing arguments. Similarly, they were unable to locate the opinion filed by this court in approximately 1979, affirming the two murder convictions. There are parts of the record available, including the probation officer’s report and the transcript of Del Rio’s sentencing hearing. The parties submitted the matter on the briefs. Defense counsel did not object to the inclusion of the probation report or the sentencing transcript among the materials to be considered by the court.