People v. Rivera CA2/3 ( 2021 )

Filed 1/29/21 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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, B306080
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. BA284089
v.
JOSE RIVERA,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County, Mark Hanasono, Judge. Affirmed.
Michele A. Douglass, under appointment by the Court
of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
_________________________
BACKGROUND
In 2013 a jury convicted defendant and appellant Jose
Rivera of the first degree murder of Leon Felipe. The jury found
true an allegation that Rivera personally and intentionally
discharged a firearm causing Felipe’s death within the meaning
of Penal Code section 12022.53, subdivision (d).1 After the jury
convicted Rivera, he apparently replaced his court-appointed
trial counsel with retained counsel. The trial court sentenced
Rivera to 50 years to life in the state prison. The court ordered
Rivera to pay a restitution fine of $10,000 under section 1202.4,
subdivision (b). Neither Rivera nor the lawyer he had retained
objected to the restitution fine.
We affirmed Rivera’s conviction in February 2015. (People
v. Rivera (Feb. 27, 2015, B250039) [nonpub. opn.] (Rivera I).)2
After Senate Bill No. 1437 (SB 1437) took effect, Rivera
filed, on March 24, 2020, a petition for resentencing under section
1170.95. On a downloadable form, Rivera checked boxes 1, 2a,
3, 4, 5, and the sub-boxes under box 5. Box 2a states, “At trial, I
was convicted of 1st or 2nd degree murder pursuant to the felony
murder rule or the natural and probable consequences doctrine.”
The first sub-box under box 5 states, “I was not the actual killer.”
On April 16, 2020, the trial court summarily denied
Rivera’s petition in a written order. Citing People v. Lewis (2020)
43 Cal.App.5th 1128, review granted Mar. 18, 2020, S260598,
and People v. Verdugo (2020) 44 Cal.App.5th 320, review granted
Mar. 18, 2020, S260493, the trial court noted a court considering
a petition under section 1170.95 “may consider the record of
1 References to statutes are to the Penal Code.
2 On our own motion, we take judicial notice of our opinion
in Rivera’s direct appeal from the judgment of conviction. (Evid.
Code, §§ 452, subd. (d), 459.)
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conviction, including prior appellate opinions.” The court stated
the court of appeal opinion showed Rivera “personally shot and
killed Leon Felipe.” The court also noted the jury instructions
in the court file
“do not include any form of accomplice liability,
including aiding and abetting and the natural
and probable consequences doctrine. The
trial court instructed on deliberation and
premeditation as the sole theory of first degree
murder. The jury found Petitioner guilty of
first degree murder with the personal and
intentional discharge of a firearm causing
death.”
The court concluded, “[b]ased on the facts and the jury findings,
Petitioner was the actual killer in this case.” Accordingly,
the court ruled, he had “failed to make a prima facie showing
of eligibility for resentencing under section 1170.95.”
In the meantime, in early April 2020, Rivera mailed to the
superior court a document entitled “Motion for the Disposition of
Restitution.” The motion appears to be a fill-in-the-blanks form.
The motion contends there is “an apparent dispute between two
statutes”: section 1202.4, subdivision (a), and “Government Code
Section 13967(a).” Rivera apparently is unaware that former
Government Code section 13967 was repealed in 2003. (Stats.
2003, ch. 230, § 2.)
On May 1, 2020, the trial court denied Rivera’s motion.
The minute order states, “[A]t the time of sentencing, defendant
did not object to the trial court’s imposition of the restitution fine
or request consideration of his ability to pay, as required by Penal
Code section 1202.4, subdivision (c). Consequently, defendant
forfeited any objection that the court failed to consider his ability
to pay. (People v. Taylor (2019) 43 Cal.App.5th 390, 399-400.)”
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Rivera filed notices of appeal from the April 16 order
denying his resentencing petition and the May 1 order denying
his “Motion for the Disposition of Restitution.” We appointed
counsel to represent him. After examining the record, counsel
filed an opening brief raising no issues and asking this court
to “follow the procedures set forth in People v. Serrano (2012)
211 Cal.App.4th 496.” Counsel notified Rivera that she had filed
a Serrano brief and that Rivera could file a supplemental brief.
On November 12, 2020, Rivera filed a supplemental brief.
Rivera’s brief discusses the restitution issue but not the
resentencing issue. Because Rivera filed a supplemental brief,
we follow the procedures set forth in People v. Wende (1979)
25 Cal.3d 436 (Wende) rather than those in Serrano.
DISCUSSION
1. Resentencing petition
SB 1437 “ ‘amend[ed] the felony murder rule and the
natural and probable consequences doctrine, as it relates
to murder, to ensure that murder liability is not imposed on
a person who is not the actual killer . . . .’ ” (People v. Gutierrez-
Salazar (2019) 38 Cal.App.5th 411, 417, quoting Stats. 2018,
ch. 1015, § 1, subd. (f); see Pen. Code, § 189, subd. (e)(1).)
Here, however, Rivera was the actual killer.
As we discussed in our opinion affirming Rivera’s
conviction, one afternoon in May 2005, Rivera shot Felipe,
who then fell. Rivera took a step forward and fired again.
Felipe’s brother witnessed the shooting. Neighbors heard
gunshots and then saw Rivera running away. Felipe “died
from multiple gunshot wounds.” (Rivera I.)
As Felipe’s actual killer, Rivera is not eligible for
resentencing under section 1170.95. (See §§ 189, subd. (e)(1),
190.2, subd. (b); People v. Tarkington (2020) 49 Cal.App.5th
892, 895-896, 899 [as actual killer, petitioner is not entitled
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to resentencing], review granted Aug. 12, 2020, S263219; People
v. Gallo (2020) 57 Cal.App.5th 594; People v. Cornelius (2020)
44 Cal.App.5th 54, 57-58 [jury’s true finding on firearm allegation
constitutes implicit finding that petitioner was the actual killer
and thus “indisputably ineligible for relief”], review granted
Mar. 18, 2020, S260410; cf. People v. Edwards (2020) 48
Cal.App.5th 666, 669, 671, 674 [affirming summary denial of
resentencing petition where petitioner was the actual killer
and was not tried or convicted based on felony murder theory or
aiding and abetting under the natural and probable consequences
doctrine], review granted July 8, 2020, S262481.) Nothing in the
record supports Rivera’s allegation that he was convicted under
the felony murder rule or the natural and probable consequences
doctrine.
2. Restitution motion
Rivera’s supplemental brief contends we should remand
the case to the trial court for it to determine Rivera’s ability
to pay the restitution fine. Rivera cites People v. Dueñas (2019)
30 Cal.App.5th 1157. Dueñas held due process requires a
trial court to conduct an ability-to-pay hearing and ascertain
a defendant’s ability to pay before executing a restitution fine
under section 1202.4 (Dueñas, at p. 1164.)
We agree with other courts that have concluded Dueñas
was wrongly decided. (See People v. Hicks (2019) 40 Cal.App.5th
320, 327-329, review granted Nov. 26, 2019, S258946; People v.
Cota (2020) 45 Cal.App.5th 786, 794-795; People v. Petri (2020)
45 Cal.App.5th 82, 90-92; People v. Adams (2020) 44 Cal.App.5th
828, 831; People v. Kingston (2019) 41 Cal.App.5th 272, 279-280;
People v. Aviles (2019) 39 Cal.App.5th 1055, 1060, 1067-1069
(Aviles).) Our Supreme Court is currently considering whether
a trial court must consider a defendant’s ability to pay before
imposing or executing fines or fees and, if so, which party bears
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the burden of proof. (People v. Kopp, review granted Nov. 13,
2019, S257844.) Pending further guidance from our Supreme
Court, we agree with Hicks and these other cases.
Moreover, Rivera forfeited any challenge to the restitution
fine. Section 1202.4, subdivision (c)—in effect when Rivera
was sentenced—provides inability to pay can be considered if
the restitution fine exceeds the minimum. (§ 1202.4, subd. (c).)
Because the $10,000 fine imposed was well above the minimum,
Rivera had a statutory right to an ability-to-pay determination
at sentencing. Thus, although Rivera was sentenced before
Dueñas was decided, an objection to the $10,000 fine would
not have been futile at the time. When the trial court imposed
the fine, Rivera did not object, assert he was indigent, or request
an ability-to-pay determination. By failing to do so, he forfeited
the claim. (See, e.g., People v. Miracle (2018) 6 Cal.5th 318, 356;
People v. Nelson (2011) 51 Cal.4th 198, 227; People v. Gamache
(2010) 48 Cal.4th 347, 409; People v. Avila (2009) 46 Cal.4th 680,
729; People v. Smith (2020) 46 Cal.App.5th 375, 394-395; Aviles,
supra, 39 Cal.App.5th at pp. 1073-1074; People v. Gutierrez
(2019) 35 Cal.App.5th 1027, 1033.) Rivera’s failure to raise
the issue in his direct appeal also waived it. (People v. Jordan
(2018) 21 Cal.App.5th 1136, 1145.)
We are satisfied that Rivera’s counsel has fully complied
with her responsibilities and that no arguable issues exist.
(People v. Kelly (2006) 40 Cal.4th 106, 109-110; Wende, supra,
25 Cal.3d at pp. 441-442.)
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DISPOSITION
We affirm the trial court’s denials of Jose Rivera’s
(1) petition for resentencing under Penal Code section 1170.95
and (2) “Motion for Disposition of Restitution.”
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, J.
We concur:
EDMON, P. J.
DHANIDINA, J.
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