People v. Rubio CA1/4

BACKGROUND

On May 29, 2007, Robert Rubio was convicted of first degree murder. (§ 187, subd. (a).) The jury found that he did not personally discharge a firearm (§ 12022.53, subds. (c), (d)), but that he personally used a firearm in

1 Undesignated statutory references are to the Penal Code. Originally numbered section 1170.95 when enacted in 2018 as Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Stats. 2018, ch. 1015, § 4) (Senate Bill 1437), the statute was renumbered to section 1172.6 effective June 30, 2022 (Stats. 2022, ch. 58, § 10). Because this statutory change does not affect our consideration of the issues raised in this appeal, we refer to the statute as section 1172.6 throughout the rest of this opinion even though it was referenced in the proceedings below by its former enumeration.

1 the commission of the crime (§§ 12022.5, former subd. (a)(1), 12022.53, subd. (b)), and that he was guilty of possession of a firearm by a felon (former § 12021, subd. (a)(1), repealed and reenacted by Stats. 2010, ch. 711, §§ 4 & 6, eff. Jan. 1, 2012). Rubio was sentenced to a total term of 35 years, 8 months to life in prison. In 2011, this court affirmed his convictions on direct…