People v. Riberal CA3

Filed 1/26/24 P. v. Riberal CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C096826

Plaintiff and Respondent, (Super. Ct. Nos. STK-CR-FE-2013-0005788, v. SF123374)

ROCKY RIBERAL,

Defendant and Appellant.

In 2014, defendant Rocky Riberal was convicted of second degree murder, attempted murder, and conspiracy to commit murder. (Pen. Code, §§ 187, 664/187, 182, subd. (a).)1 In April 2021, defendant filed a petition for resentencing under former

1 Undesignated statutory references are to the Penal Code.

1

section 1170.95, now 1172.6.2 After appointing counsel and holding an evidentiary hearing, the trial court denied defendant’s petition. On appeal, defendant argues the trial court erred in relying on this court’s prior opinion in defendant’s original appeal of his underlying convictions.3 Defendant also argues the trial court used the wrong standard of proof, the evidence was insufficient to establish defendant’s attempted murder conviction, and the trial court erred in refusing to consider defendant’s challenge to his conspiracy to commit murder conviction. We agree that the trial court erred in relying on this court’s prior opinion and will remand for a new evidentiary hearing. FACTUAL AND PROCEDURAL BACKGROUND 1. Underlying Crimes Given the limited record on appeal, we derive the facts of the underlying crimes from this court’s prior opinion. (People v. Riberal (Sept. 29, 2020, C077018) [nonpub. opn.].) Brandon Rocky Riberal (who is defendant’s son) and Raymond Valles, along with Vincente Yanez and Carlos Zendejas, drove a Ford Explorer leased by defendant to a local nightclub. Using firearms supplied by defendant, the men fired multiple rounds at nightclub patrons who were in the parking lot. One victim was killed, another was grazed by a bullet, and a third victim was unharmed. A jury found defendant guilty of second degree murder, attempted murder, conspiracy to commit murder, and shooting a firearm from a vehicle. The jury also found true gang enhancements (§ 186.22, subd. (b)(1)) and firearm enhancements, including that defendant was a principal in the murder