People v. Rivera CA2/5

Filed 2/22/24 P. v. Rivera CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE

THE PEOPLE B331806

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. v. TA050108)

OMAR L. RIVERA,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Connie R. Quinones, Judge. Affirmed. Larry Pizarro, under appointment by the Court of Appeal for Defendant and Appellant. No appearance by Respondent.

In 1998, a jury convicted Omar L. Rivera of premeditated attempted murder (Pen. Code,1 §§ 187, subd. (a), 664), and found true the allegations that Rivera personally used a firearm (§ 12022.5) and personally inflicted great bodily injury upon the victim (§ 12022.7). The trial court sentenced Rivera to life with the possibility of parole, plus a determinate term of 13 years in prison. The Court of Appeal affirmed Rivera’s conviction on direct appeal. In 2022, Rivera petitioned for resentencing pursuant to section 1172.6 (former section 1170.95). After appointing counsel and receiving briefs from the People and Rivera, the trial court held a hearing and denied the petition based on its finding that Rivera did not present a prima facie case for relief. The court found that Rivera was convicted as the actual perpetrator; the jury was not instructed on aiding and abetting or the natural and probable consequences theory of liability for attempted murder. Rivera appealed, and this court appointed counsel to represent him. After examining the record, Rivera’s attorney filed an opening brief raising no issues and asking that we follow the procedures set forth in People v. Delgadillo (2022) 14 Cal.5th 216. We invited Rivera to submit a supplemental brief. Rivera submitted a two-page letter in response that requests we conduct an independent review of the record. He contends that (1) counsel rendered ineffective assistance by failing to investigate other individuals who were identified in the police report or to call those individuals to testify at trial; (2) the police never interviewed Rivera regarding the crime; (3) the police report states that the victim was shot with a revolver, but