Opinion
B329776
02-28-2024
THE PEOPLE, Plaintiff and Respondent, v. JOSE LUIS RIOS, Defendant and Appellant.
Juliana Drous, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. NA013361, Laura L. Laesecke, Judge.
Juliana Drous, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
We resolve this case by memorandum opinion because it "raise[s] no substantial issues of law or fact ...." (Cal. Stds. Jud. Admin., § 8.1.)
BENDIX, J.
We summarize only those facts relevant to our disposition of this appeal.
In 1993, a jury found defendant Jose Luis Rios guilty of two counts of murder. An amended abstract of judgment filed on March 29, 2021 indicates the jury had found Rios guilty of (a) second degree murder on count 1 and (b) first degree murder on count 2. The trial court sentenced Rios to a prison term of life without the possibility of parole. On August 4, 1994, we affirmed the judgment in an unpublished opinion.
We note below that Rios claims there is an ambiguity in the record regarding whether he was convicted of first or second degree murder on count 1.
On February 4, 2022, Rios filed a petition in pro per for resentencing pursuant to Penal Code section 1170.95. The trial court appointed counsel for Rios. The People filed a response to Rios's petition, and Rios's appointed counsel filed a reply.
Undesignated statutory citations are to the Penal Code. On June 30, 2022, section 1170.95 was renumbered, without substantive change, as section 1172.6. (See Stats. 2022, ch. 58, §§ 10, 47 [Assembly Bill No. 200, which renumbered § 1170.95 as § 1172.6, and provided that the statute took effect immediately on June 30, 2022]; People v. Delgadillo (2022) 14 Cal.5th 216, 223, fn. 3 (Delgadillo) [noting that Assembly Bill No. 200 renumbered former § 1170.95 to § 1172.6 without any substantive change].) Accordingly, all subsequent references are to section 1172.6.
On March 22, 2023, the trial court held a hearing at which it denied Rios's section 1172.6 petition for failure to make a prima facie showing of entitlement to resentencing under the statute. Rios timely appealed the order denying his petition.
On August 24, 2023, we appointed counsel for Rios. On October 24, 2023, Rios's appointed counsel filed a brief in which counsel identified no issues for us to review. On October 26, 2023, we directed appointed counsel to send the record on the appeal and a copy of counsel's brief to Rios, and we informed Rios that he may submit supplemental briefing. On December 21, 2023, Rios filed a supplemental brief.
Generally, when, as here, a defendant appeals from the denial of postconviction relief and appointed counsel files a brief raising no issues, we do not review the record independently to determine whether there are any arguable issues on appeal.(See Delgadillo, supra, 14 Cal.5th at pp. 224-226.) Rather, we "evaluate the specific arguments presented in" the defendant's supplemental brief. (See id. at p. 232.)
Rios's appellate counsel asks us to exercise our discretion to independently review the record to determine whether the trial court erred in denying the resentencing petition. We decline to do so. (See Delgadillo, supra, 14 Cal.5th at p. 232 [holding that the decision to independently review the record is a matter "wholly within the [Court of Appeal's] discretion"].)
Rios raises the following two issues in his supplemental brief: (1) with regard to count 1, it is unclear whether the jury found Rios guilty of murder in the first degree or, instead, second degree murder; and (2) in determining whether Rios made a prima facie case for relief under section 1172.6, the trial court erred in considering the factual summary from our prior opinion in Rios's direct appeal, which opinion was attached to the People's response to his petition.
Although Rios also seems to suggest the trial court erroneously denied his petition based upon a "charged enhancement," he does not elaborate on that point. (See People v. Evans (2011) 200 Cal.App.4th 735, 756, fn. 12 [rejecting a contention that a party had "fail[ed] to adequately support"].)
Assuming arguendo the record contains an ambiguity regarding whether Rios was convicted of first or second degree murder on count 1, Rios does not explain how that ambiguity demonstrates the jury found him guilty based on a "theory under which malice is imputed to a person based solely on that person's participation in a crime ...." (See § 1172.6, subd. (a) [identifying the criteria for relief under that statute]; People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573 ["Perhaps the most fundamental rule of appellate law is that the judgment challenged on appeal is presumed correct, and it is the appellant's burden to affirmatively demonstrate error," italics added].)
As for Rios's second contention, at the hearing on Rios's petition, the trial court stated, "[T]he jury instructions that were attached to the People's response as well as everything that [the court had] read that ha[d] been submitted" demonstrated that Rios had "not met the threshold for a prima facie showing that he is entitled to resentencing ...." The court further remarked it could not "see any theory that was submitted to the jury, other than he was the actual killer ...."
Rios does not identify any instruction that permitted the jury to find him guilty based on a theory of imputed malice, nor does he argue the trial court erred in its analysis of the jury instructions finding him ineligible for relief under section 1172.6. (See People v. Cortes (2022) 75 Cal.App.5th 198, 204-205 [concluding that a defendant failed to make a prima facie showing because "the jury was not instructed on any theory of liability for murder . . . that required that malice be imputed to" the defendant "based solely on [his] participation in a crime"].) Consequently, even if arguendo the trial court considered the prior appellate opinion in the course of ruling on Rios's petition, Rios fails to establish any resulting prejudice. (Cf. People v. Lewis (2021) 11 Cal.5th 952, 972-974 [holding that the failure to appoint counsel in a § 1172.6 proceeding is subject to the state law standard of prejudice, meaning the defendant must" 'demonstrate there is a reasonable probability that in the absence of the error he . . . would have obtained a more favorable result' "].) Because Rios has not shown the existence of reversible error, we affirm the trial court's order denying his resentencing petition.
Rios purports to incorporate by reference into his supplemental brief arguments made by his appointed counsel in the reply to the People's response to the resentencing petition. This is improper. (See People v. Abilez (2007) 41 Cal.4th 472, 536 [deeming "improper [an appellant's attempt] to incorporate by reference documents from the trial court"].) In any event, counsel's reply brief does not establish Rios made a prima facie case for relief under section 1172.6. Also to no avail is the court reporter's affidavit that Rios incorporates by reference into his brief.
Given our conclusion that Rios fails to establish he made a prima facie showing under section 1172.6, we deny as moot his request for judicial notice of a minute order, an abstract of judgment, and certain reporters' certificates attached to his supplemental brief. (See Association for Los Angeles Deputy Sheriffs v. County of Los Angeles (2023) 94 Cal.App.5th 764, 793, fn. 23 [noting that an appellate court may decline to take judicial notice of" 'materials . . . not relevant to [that court's] determination of the issues on appeal' "].)
DISPOSITION
The trial court's March 22, 2023 order denying defendant Jose Luis Rios's petition for resentencing is affirmed. We deny as moot Rios's request for judicial notice of exhibits A and B to his supplemental brief.
We concur: ROTHSCHILD, P. J., WEINGART, J.