People v. Rivera CA5

Filed 2/9/24 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F086153 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. James Bisnow, 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 and Ian Whitney, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

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

Defendant Anthony Gabriel Rivera appeals following resentencing on remand in Rivera II.1 He claims the trial court abused its discretion both under Penal Code section 13852 as amended by Senate Bill No. 81 when it declined to strike or dismiss the firearm enhancement attached to count 1 and under section 1170 as amended by Senate Bill No. 567 when it declined to impose the lower determinate term on count 2 based on his age and trauma he experienced.3 Defendant, who was sentenced more than one year after the effective dates of Senate Bills 81 and 567, does not dispute that he failed to object in the trial court, but argues we should reach the merits of his claims notwithstanding the forfeiture doctrine. As discussed below, we conclude defendant forfeited review of his claims by failing to object in the trial court and we affirm the judgment. PROCEDURAL BACKGROUND Defendant, then 20 years old, was arrested and charged with a fatal shooting that occurred in the victim’s garage in March 2015. In 2016, defendant was convicted by jury of second degree murder (§§ 187, subd. (a), 189; count 1) 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

1 For the purpose of summarizing the relevant facts and procedural history, we take judicial notice of our prior nonpublished opinions in People v. Rivera (Sept. 26, 2019, F075057) (Rivera I) and People v. Rivera (Nov. 23, 2022, F082535) (Rivera II). (Evid. Code, §§ 452, subd. (d), 459.) 2 All further statutory references are to the Penal Code unless otherwise specified. 3 Senate Bill No. 81 (2021–2022 Reg. Sess.) (Senate Bill 81) amended section 1385, and Senate Bill No. 567 (2021–2022 Reg. Sess.) (Senate Bill 567) amended section 1170, effective January 1, 2022. Both statutes were amended subsequently, but those amendments are not relevant to the issues raised in this appeal. (Assem. Bill No. 200 (2021–2022 Reg. Sess.) [amending § 1385, eff. June 30, 2022]; Assem. Bill No. 960 (2021–2022 Reg. Sess.) [amending § 1170, eff. Jan. 1, 2023].) The Legislature also recently made nonsubstantive changes to numerous code sections as part of a code maintenance bill, including sections 1170 and 1385. (Assem. Bill No. 1754, approved by the Governor July 27, 2023 (2023–2024 Reg. Sess.) Stats. 2023, ch. 131, §§ 155, 160, eff. Jan. 1, 2024.)