People v. Rizo CA3

Filed 8/24/22 P. v. Rizo CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (San Joaquin) ----

THE PEOPLE,

Plaintiff and Respondent, C091020

v. (Super. Ct. No. STK-CR- FECOD-2017-0016606) GILBERT PAUL RIZO, JR.,

Defendant and Appellant.

A jury found defendant Gilbert Paul Rizo, Jr., guilty of numerous crimes, including carjacking, kidnapping to commit rape, and rape by force or fear, and the trial court sentenced him to an aggregate determinate term of 10 years eight months, an indeterminate term of seven years to life, and five consecutive indeterminate terms of 25 years to life. Defendant asserted in his appellant’s opening brief that the trial court abused its discretion in admitting evidence that defendant committed a second uncharged carjacking the same day, and that the victim was thinking about her missing friend during the crimes. Defendant subsequently filed a supplemental brief urging that remand and resentencing is required under newly enacted Senate Bill No. 567 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 731).

1

We will affirm defendant’s convictions but vacate his sentence and remand the matter to permit the trial court to reconsider the sentence based on the retroactive changes in the law. BACKGROUND Defendant, who was born on October 11, 1995, was charged with carjacking (Pen. Code, § 215, subd. (a)1 -- count 1), kidnapping to commit rape (§ 209, subd. (b)(1) -- count 2), rape by force or fear (§ 261, subd. (a)(2) -- counts 9 and 11), forcible oral copulation (former § 288a, subd. (c)(2)(A) -- counts 10 and 14), forcible rape in concert (§ 264.1, subd. (a) -- count 13), criminal threats (§ 422, subd. (a) -- count 17), and robbery (§ 211 -- count 18). It was further alleged that the crimes occurred during an aggravated kidnapping (§ 667.61, subd. (d)(2)). At trial, the victim testified she was carjacked and kidnapped in Stockton at gunpoint on the night of June 2, 2017. It began with Deonte Turner pointing a gun at her and telling her to hand over her keys. Turner put her in the back seat and four other men eventually got in the car, including defendant. Over the course of several hours, four of the five men, while they drove from Stockton to Modesto and back, took turns raping the victim, putting their fingers in her vagina and anus, and forcing her to orally copulate them. The victim identified defendant at trial as one of the men who forced her to orally copulate him. She also said the person she thought was defendant was wearing a wide- brimmed straw hat, “kind of like a gardening hat.” She had also mentioned in an interview right after the kidnapping one of the attackers wore a straw hat. But later in her testimony at trial the victim stated she was unsure of her in-court identification of defendant and was unable to identify him in a photo lineup shortly after the events.