People v. Rivera CA5

California Court of Appeal Nov 23, 2022 No. F082535Unpublished

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Holding. The court held that the defendant is entitled to a remand for resentencing to allow the trial court to exercise its discretion to impose a lesser firearm enhancement under Penal Code section 12022.53, subdivisions (b) or (c), pursuant to the California Supreme Court's decision in People v. Tirado.

Issues

Whether the trial court has the discretion to impose a lesser firearm enhancement under section 12022.53, subdivisions (b) or (c), when the jury found true the facts supporting a subdivision (d) enhancement.
Whether remand for resentencing is required to allow the trial court to exercise informed discretion regarding firearm enhancements.
Whether the defendant is entitled to seek relief under Senate Bill 567 and Assembly Bill 518 on remand.

Disposition. remanded

Quotations verified verbatim against the opinion

“Defendant is entitled to a sentencing decision that is fully informed by the discretion to select a lesser enhancement term and, therefore, remand is appropriate under Tirado.”

“this matter is remanded to afford defendant the opportunity to seek imposition of a lesser firearm enhancement under subdivision (b) or subdivision (c) of section 12022.53.”

Filed 11/23/22 P. v. Rivera CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

THE PEOPLE, F082535 Plaintiff and Respondent, (Super. Ct. No. BF160490A) v.

ANTHONY GABRIEL RIVERA, OPINION Defendant and Appellant.

THE COURT * APPEAL from a judgment of the Superior Court of Kern County. John W. Lua, Judge. Laura P. Gordon, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. Cary and Ian Whitney, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Poochigian, Acting P. J., Meehan, J. and DeSantos, J.

BACKGROUND Defendant Anthony Gabriel Rivera, then 20 years old, was arrested and charged with a fatal shooting that occurred in the victim’s garage in March 2015. 1 In 2016, defendant was convicted by jury of second degree murder (Pen. Code, §§ 187, subd. (a), 189; count 1)2 and possession of a firearm by a felon (§ 29800, subd. (a)(1); count 2). The jury also found true the sentence enhancement attached to count 1 for personal and intentional discharge of a firearm causing great bodily injury or death. (§ 12022.53, subd. (d).) In 2017, the trial court sentenced defendant to 15 years to life on count 1, plus an additional 25 years to life for the firearm enhancement, and to the upper term of three years on count 2, stayed under section 654. Defendant appealed and in Rivera I, we affirmed the judgment but remanded the matter for resentencing in light of Senate Bill No. 620 (2017–2018 Reg. Sess.), which, effective January 1, 2018, granted the trial court discretion to strike the firearm enhancement in the interest of justice. (Stats. 2017, ch. 682, § 2 (Senate Bill 620) [amending § 12022.53, subd. (h)].) On remand, the trial court declined to strike the enhancement and defendant filed a timely notice of appeal. Appointed counsel found no arguable issues and filed a Wende brief. (People v. Wende (1979) 25 Cal.3d 436.) Subsequently, we issued an order striking the Wende brief on our own motion and directing counsel to address Senate Bill No. 567 (2021–2022 Reg. Sess.) and Assembly Bill No. 518 (2021–2022 Reg. Sess.), effective January 1, 2022, and any additional issues deemed meritorious. (Stats. 2021, ch. 731, § 1.3 (Senate Bill 567); Stats. 2021, ch. 441, § 1 (Assembly Bill 518).) Briefing is now complete.

People v. Rivera CA5

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