People v. Rivera CA2/4

Filed 6/16/23 P. v. Rivera CA2/4 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR

THE PEOPLE, B322198

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA281996) v.

JESUS RIVERA,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Michael E. Pastor, Judge. Dismissed. Joanna McKim, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.

Jesus Rivera appeals the order of the trial court denying his petition for resentencing under Penal Code1 section 1172.6 (former section 1170.95).2 We dismiss the appeal as abandoned.

BACKGROUND In April 2005, Robert Garcia was shot in a drive-by shooting. Rivera was identified as the shooter. In August 2005, a jury convicted Rivera of attempted premeditated willful and deliberate murder (§§ 664/187, subd. (a)), assault with a firearm (§ 245, subd. (a)(2)), and discharge of a firearm from a motor vehicle (§ 12034, subd. (c)). The jury found true allegations that Rivera committed all three offenses for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)) and that in the commission of these offenses he personally inflicted great bodily injury (§ 12022.7, subd. (a)). The jury also found true firearm use allegations. (§§ 12022.5, subd. (a), 12022.53, subds. (b)-(d).) The trial court sentenced Rivera to 40 years to life in state prison. On appeal, the assault conviction was reversed. (People v. Rivera (Apr. 25, 2007, B187176) [nonpub. opn.].) The judgment was otherwise affirmed. On January 13, 2022, Rivera filed, in pro. per., a petition for resentencing pursuant to section 1172.6. Among other allegations, Rivera alleged he “could not presently be convicted of . . . attempted murder because of changes made to Penal Code §§ 188 and 189, effective January 1, 2019.” Rivera checked the box on the petition asking for appointed counsel.