People v. Rios CA4/2

Filed 3/3/26 P. v. Rios CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOURTH APPELLATE DISTRICT DIVISION TWO

THE PEOPLE, Plaintiff and Respondent, E086380 v. (Super.Ct.No. FSB02398) DAVID RIOS, OPINION Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino County. Gregory S. Tavill, Judge. Affirmed.

John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

Defendant and appellant David Rios appeals from the orders of the San Bernardino County Superior Court declining to hear his Penal Code section 1172.1 petition and finding him ineligible for resentencing under Penal Code section 1172.6.1 We will affirm.

BACKGROUND In 1994, a jury convicted defendant of two counts of murder, found true a multiple murder special circumstance and, as to both counts of murder, it found true that defendant used a deadly weapon (a knife). The trial court sentenced defendant to a life term to run consecutively without the possibility of parole for each of the murders, a consecutive one-year term for use of the knife as to one of the murder convictions, and a consecutive four-month term for use of a knife as to the other. We affirmed the judgment. (People v. Rios (Apr. 10, 1996, E015500) [nonpub. opn.].)

In September 2023, defendant filed a section 1172.6 petition for resentencing, alleging he was entitled to relief under that provision because he had been convicted pursuant to the felony-murder rule or the natural and probable consequences doctrine and could not now be convicted of murder because of the changes made to sections 188 and that became effective on January 1, 2019.2 Defendant was present by video and represented by counsel when his petition was heard on May 15, 2025. The trial court

1 All further statutory references are to the Penal Code.

2 Defendant's petition was filed on a section 1170.95 petition form. That provision was renumbered as section 1172.6 without change in the text, effective June 30, 2022 (Stats. 2022, ch. 58, § 10). We refer to the provision by its new numbering. stated it had looked at the jury instructions and verdict forms and found it was “completely clear” that defendant was not eligible for section 1172.6 resentencing relief.

On the same day as the hearing on defendant’s section 1172.6 petition, his counsel filed a motion seeking review of defendant’s sentence pursuant to section 1172.1. The trial court noted it had discretion to entertain the motion but, because the matter was not on the calendar, it declined to hear the request. Defendant appealed and we appointed counsel to represent him.

DISCUSSION On appeal, defendant’s appointed appellate counsel filed an opening brief that sets forth statements of the case and facts but does not present any issues for adjudication.

Counsel notes we have discretion under People v. Delgadillo (2022) 14 Cal.5th 216, 232 to conduct an independent review of the record in appeals from denials of section 1172.6 petitions.

Upon receipt of the opening brief, we notified defendant that his counsel had filed a brief stating counsel had not found an arguable issue, that this court is not required to conduct an independent review of the record but it may exercise its discretion to do so, and we invited him to file any arguments he deemed necessary. Defendant did not file a brief.

Neither defendant nor his counsel have presented an issue and upon our review of the record, we do not find any error. Accordingly, we affirm the trial court’s finding that defendant is not eligible for section 1172.6 relief and its decision not to hear defendant’s motion for review of his sentence under section 1172.1 DISPOSITION The findings and orders of the trial court are affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ P. J.

We concur: MILLER J.

CODRINGTON J.