Filed 8/29/22 P. v. Sosa CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX

THE PEOPLE,

 Plaintiff and Respondent,

v.

LUIS GABRIEL RIO SOSA,

 Defendant and Appellant.

2d Crim. No. B319942

(Super. Ct. No. 1214502)

(Santa Barbara County)

Luis Gabriel Rio Sosa appeals from an order denying his 

petition for resentencing pursuant to Penal Code section 1172.6.

(former § 1170.95.)1 We dismiss the appeal. 

In 2009, a jury convicted appellant of premeditated first 

degree murder (§§ 187, subd. (a), 189), with special findings that 

he personally and intentionally discharged a firearm causing 

death (§ 12022.53, subd. (d)). He was sentenced to 50 years to life

in state prison. We affirmed appellant’s conviction. (People v. 

1 All further statutory references are to the Penal Code. 
2

Luis Gabriel Rio Sosa (Jan. 24, 2011, B219803) [nonpub. opn.]

(Sosa).)

In November 2021, appellant, acting in propria persona, 

filed a petition for resentencing pursuant to section 1172.6. In 

his petition, he claimed he was convicted of first degree murder

“pursuant to the felony murder rule or the natural and probable 

consequences doctrine,” and could not now be convicted of murder

in light of the changes made to sections 188 and 189 as part of 

Senate Bill No. 1437. 

The People opposed the motion because appellant was not 

convicted under a theory of felony murder or natural and 

probable consequences. Instead, he was the actual killer, who 

acted with malice, and could still be convicted of murder under 

the law as amended.

Following a hearing, the trial court summarily denied 

appellant’s petition for resentencing finding that he was the 

“shooter” in a “deliberate” and “premeditated murder.”

We appointed counsel to represent appellant in this appeal. 

After an examination of the record, counsel filed an opening brief 

that raises no arguable issues. We advised appellant he had 30 

days within which to personally submit any contentions or issues 

that he wished us to consider. He subsequently filed a five-page 

handwritten supplemental brief. 

Because this is an appeal from an order denying 

postconviction relief, appellant is not entitled to our independent 

review pursuant to People v. Wende (1979) 25 Cal.3d 436. (People 

v. Serrano (2012) 211 Cal.App.4th 496, 501 (Serrano); People v. 

Cole (2020) 52 Cal.App.5th 1023, 1039-1040, review granted Oct. 

14, 2020, S264278.) We do, however, consider the issues raised in 

his supplemental brief. (Cole, at p. 1040.)
3

Appellant makes a number of arguments attacking the trial 

court’s denial of his petition for resentencing at the prima facie 

stage without issuing an order to show cause and holding an 

evidentiary hearing. However, a trial court may appropriately 

deny a petition at the prima facie stage if the petitioner is 

ineligible for relief as a matter of law. (People v. Lewis (2021) 11 

Cal.5th 952, 972, fn. 6 (Lewis).) 

As Lewis explained, “‘[a] court should not reject the 

petitioner’s factual allegations on credibility grounds without 

first conducting an evidentiary hearing.’ [Citations.] ‘However, if

the record, including the court’s own documents, “contain[s] facts 

refuting the allegations made in the petition,” then “the court is 

justified in making a credibility determination adverse to the 

petitioner.”’” (Lewis, supra, 11 Cal.5th at p. 971.) 

The record of conviction in this case conclusively 

establishes that appellant is ineligible for relief as a matter of 

law because the jury found him guilty of premeditated first 

degree murder with the special finding that he personally used a 

firearm to commit the murder offense. (See Sosa, supra, 

B219803.) There was no error.

Since nothing in appellant’s supplemental brief raises an 

arguable issue on appeal from the order denying his petition 

for resentencing, we dismiss the appeal. (Serrano, supra, 211 

Cal.App.4th at pp. 503-504.)
4

DISPOSITION

The appeal is dismissed.

NOT TO BE PUBLISHED.

 

YEGAN, J.

We concur:

GILBERT, P. J.

PERREN, J.*

* Retired Associate Justice of the Court of Appeal, Second Appellate District, 

assigned by the Chief Justice pursuant to article VI, section 6 of the California 

Constitution.
Pauline Maxwell, Judge

Superior Court County of Santa Barbara

______________________________

Richard B. Lennon, under appointment by the Court of 

Appeal, for Defendant and Appellant. 

No appearance for Respondent.