People v. Rivera CA2/3

Filed 6/26/23 P. v. Rivera CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, B324110

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA459245) v.

ALBERTO RAFAEL RIVERA,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Henry J. Hall, Judge. Affirmed. Alberto Rafael Rivera, in pro. per.; Christine M. Aros, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.

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Alberto Rivera appeals from an order denying his petition for resentencing under Penal Code1 section 1172.6.2 His appellate counsel filed a brief under People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo), and Rivera filed a supplemental brief asking us to consider whether the instructions given at his trial allowed the jury to convict him of attempted murder under an invalid theory of imputed malice.3 As we now explain, Rivera was not convicted of attempted murder under a now-invalid theory, and therefore he is not eligible for resentencing under section 1172.6.

1 All further undesignated statutory references are to the Penal Code. 2 Effective June 30, 2022, section 1170.95 was renumbered to section 1172.6, with no change in text. (Stats. 2022, ch. 58, § 10.) 3 Delgadillo, supra, 14 Cal.5th 216, held that the procedures in Anders v. California (1967) 386 U.S. 738 and People v. Wende (1979) 25 Cal.3d 436 do not apply to appeals from the denial of postconviction relief under section 1172.6. The court instructed that on appeal from an order denying section 1172.6 relief, a counsel who finds no arguable issue should file a brief informing the appellate court of that determination and include a concise factual recitation. (Delgadillo, at pp. 231–232.) The appellate court shall send a copy of the brief to the defendant informing the defendant of the right to file a supplemental brief and that if one is not filed within 30 days, the court may dismiss the matter. (Ibid.) If, as Rivera has done here, a supplemental brief is filed, we must evaluate the contentions in it. (Id. at p. 232.) If a supplemental brief is not filed, we may dismiss the appeal as abandoned without a written opinion, although we retain discretion to independently review the record. (Ibid.)