People v. Rios CA2/3 ( 2015 )

Filed 4/29/15 P. v. Rios 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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, B258287
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA208429)
v.
JESUS RIOS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles County,
William C. Ryan, Judge. Affirmed.
Cheryl Lutz, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
_____________________
Defendant and appellant Jesus Rios appeals the trial court’s denial of his motion
for recall and resentencing pursuant to Proposition 36, the Three Strikes Reform Act of
2012. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A jury convicted Rios of attempted second degree robbery (Pen. Code, §§ 664,
211)1 and simple assault (§ 240). It acquitted him of assault with a deadly weapon or by
means likely to produce great bodily injury (§ 245, former subd. (a)(1)), and found not
true the allegation that he personally used a dangerous and deadly weapon during the
offenses (§ 12022, subd. (b).) After Rios waived his right to a jury trial, the trial court
found he had two sustained juvenile adjudications for robbery. It denied Rios’s Romero
motion2 and sentenced him to a term of 25 years to life pursuant to the “Three Strikes”
law. We affirmed the judgment in an unpublished opinion. (People v. Rios (Sept. 27,
2002, B150077) [nonpub. opn.].)3
On August 1, 2014, Rios petitioned for recall of his sentence and resentencing
pursuant to the Three Strikes Reform Act of 2012 (Proposition 36), section 1170.126. On
August 8, 2014, the trial court denied the petition with prejudice. It concluded Rios was
ineligible for resentencing because his current conviction was for attempted robbery, a
serious felony (§§ 1192.7, subds. (c)(19) & (39), 1170.126, subd. (e)(1).) Rios filed a
timely notice of appeal on August 19, 2014. (See Cal. Rules of Court, rule 8.308(a).)
1
All further undesignated statutory references are to the Penal Code.
2
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
3
We take judicial notice of our unpublished opinion. (Evid. Code, § 452,
subd. (d).)
2
DISCUSSION
After review of the record, appellant’s court-appointed counsel filed an opening
brief which raised no issues, and requested this court to conduct an independent review of
the record pursuant to People v. Wende (1979) 25 Cal.3d 436, 441. On November 24,
2014, we advised appellant that he had 30 days to submit by brief or letter any
contentions or argument he wished this court to consider.
After being granted an extension of time, on January 26, 2015 Rios filed a
supplemental brief. Rios argues that “[t]he facts of the present case do not warrant a
sentence of 25 years to life” because the crime was not completed, the victim was not
injured, and the jury acquitted him of assault with a deadly weapon or by means likely to
produce great bodily injury and found he did not personally use a dangerous or deadly
weapon. In light of the foregoing, Rios asserts that we should evaluate the entire record
to determine whether the offense was a serious felony.
However, we lack the authority to do so. Attempted robbery is listed in the
relevant statute as a serious felony. (§ 1192.7, subds. (c)(19) & (39).) Section 1170.126,
subdivision (e)(1), expressly states that an inmate is eligible for resentencing if he is
serving a term for “a conviction of a felony or felonies that are not defined as serious
and/or violent felonies by subdivision (c) of Section 667.5 or subdivision (c) of Section
1192.7.” (Italics added.) Section 1170.126, subdivision (a), states that its resentencing
provisions “are intended to apply exclusively to persons presently serving an
indeterminate term of imprisonment” pursuant to the Three Strikes law “whose sentence
under [Proposition 36] would not have been an indeterminate life sentence.” Rios is
therefore statutorily ineligible for resentencing, and this court could not find him eligible
even if we agreed that the facts of his offense were not especially egregious. No
violation of Rios’s due process rights is apparent.
3
Rios also argues that the sentencing court improperly treated his prior sustained
juvenile adjudications for robbery as “strikes,” because he was not afforded a jury trial in
connection with those offenses. He avers that use of the juvenile adjudications as strikes
is prohibited by Apprendi v. New Jersey (2000) 530 U.S. 466, and violated his rights to
due process, trial by jury, counsel, and confrontation.
This argument was raised and rejected in Rios’s direct appeal. Even if it was
cognizable at this juncture, it has been rejected by our Supreme Court. As Rios
acknowledges, People v. Nguyen (2009) 46 Cal.4th 1007 concluded that the absence of a
right to jury trial at a juvenile adjudication does not preclude future use of a sustained
petition as a strike. Nguyen reasoned that Apprendi requires “at most, the right to a jury
trial in the current criminal proceeding with respect to any sentencing fact that may
increase the maximum punishment for the underlying conviction.” (People v. Nguyen,
supra, at p. 1012.) “So long as an accused adult is accorded his or her right to a jury trial
in the adult proceeding as to all facts that influence the maximum permissible sentence,
no reason appears why a constitutionally reliable prior adjudication of criminality,
obtained pursuant to all procedural guarantees constitutionally due to the offender in the
prior proceeding—specifically including the right to proof beyond a reasonable doubt—
should not also be among the facts available for that sentencing purpose.” (Id. at
p. 1023.) Nguyen is fatal to Rios’s claim. (Auto Equity Sales, Inc. v. Superior Court
(1962) 57 Cal.2d 450, 455.)
We have examined the entire record and are satisfied appellant’s attorney has fully
complied with the responsibilities of counsel and no arguable issues exist. (People v.
Kelly (2006) 40 Cal.4th 106, 126; People v. Wende, supra, 25 Cal.3d at p. 441.)
4
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ALDRICH, J.
We concur:
KITCHING, Acting P. J.
EGERTON, J.

Judge of the Los Angeles Superior Court, assigned by Chief Justice pursuant to
article VI, section 6 of the California Constitution.
5