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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.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 r esentencing pursuant to section 117 2.6

. 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 ch anges made to section s 188 and 189 as part of
Sen ate Bill No. 1437. The People opposed the motion because appellant was not
convicted u nder 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 w ithin which to personally submit any contentions or issues that he wished us to consider. He subsequently filed a five

- page handwritten sup plemental 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 10 23, 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.5 th 952, 972, fn . 6 ( Lewis ) .)
As Lewis explained, “‘ [a] court should not reject the
pet itioner’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.5 th 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 

### DISP OSITION 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 Supe rior Court County of Santa Barbara

______________________________

Richard B. Lennon, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Respondent.