People v. Rivera CA2/3, B306080

In 2013 a jury convicted Jose Rivera of first-degree murder and found true a personal and intentional firearm discharge special allegation; he was sentenced to 50 years to life and a $10,000 restitution fine; no objection was made at sentencing.
Rivera’s direct appeal was affirmed in 2015.
After SB 1437, Rivera filed a section 1170.95 petition (March 2020) checking boxes claiming he was not the actual killer and was convicted under felony-murder or the natural-and-probable-consequences theory.
The trial court summarily denied the 1170.95 petition, relying on the record and the prior appellate opinion showing Rivera personally shot the victim and that the trial was based on premeditated murder (no accomplice liability instructions).
Rivera separately moved to challenge the restitution fine on ability-to-pay grounds; the trial court denied that motion as forfeited because Rivera did not request an ability-to-pay hearing at sentencing.
Rivera appealed both denials; appellate counsel filed a Wende brief and the court affirmed both trial-court rulings.

Issue	People’s Argument	Rivera’s Argument	Held
Whether Rivera was eligible for resentencing under Penal Code §1170.95 (SB 1437)	Record and prior opinion show Rivera was the actual killer; petition facially ineligible	Rivera asserted he was not the actual killer and was convicted under felony-murder or natural-and-probable-consequences doctrine	Denied: Rivera was the actual killer (shot victim twice); not eligible for §1170.95 relief
Whether the $10,000 restitution fine must be vacated/remanded for an ability-to-pay hearing	The People (and the court) treat the claim as forfeited because Rivera did not request an ability-to-pay hearing at sentencing	Rivera asked remand relying on People v. Dueñas (ability-to-pay required)	Denied: court rejects Dueñas as wrongly decided and finds Rivera forfeited the claim by failing to object at sentencing

People v. Dueñas, 30 Cal.App.5th 1157 (2019) (held trial court must conduct ability-to-pay hearing for certain fines; relied on by Rivera but rejected by this court)
People v. Cornelius, 44 Cal.App.5th 54 (2020) (true firearm finding can establish petitioner was the actual killer and is ineligible for SB 1437 relief)
People v. Tarkington, 49 Cal.App.5th 892 (2020) (actual killer ineligible for resentencing under SB 1437)
People v. Gutierrez-Salazar, 38 Cal.App.5th 411 (2019) (describes SB 1437’s purpose to limit liability for nonactual killers)
People v. Hicks, 40 Cal.App.5th 320 (2019) (rejected Dueñas and declined to require pre-imposition ability-to-pay hearings)
People v. Aviles, 39 Cal.App.5th 1055 (2019) (rejected Dueñas and addressed forfeiture of ability-to-pay claims)
People v. Miracle, 6 Cal.5th 318 (2018) (forfeiture principles for sentencing claims)
People v. Wende, 25 Cal.3d 436 (1979) (procedures for appellate review when counsel files no-issue brief)
People v. Kelly, 40 Cal.4th 106 (2006) (counsel duties when filing a no-issue brief)