People v. Rivera CA5

BACKGROUND

Defendant Anthony Gabriel Rivera, then 20 years old, was arrested and charged with a fatal shooting that occurred in the victim’s garage in March 2015. 1 In 2016, defendant was convicted by jury of second degree murder (Pen. Code, §§ 187, subd. (a), 189; count 1)2 and possession of a firearm by a felon (§ 29800, subd. (a)(1); count 2). The jury also found true the sentence enhancement attached to count 1 for personal and intentional discharge of a firearm causing great bodily injury or death. (§ 12022.53, subd. (d).) In 2017, the trial court sentenced defendant to 15 years to life on count 1, plus an additional 25 years to life for the firearm enhancement, and to the upper term of three years on count 2, stayed under section 654. Defendant appealed and in Rivera I, we affirmed the judgment but remanded the matter for resentencing in light of Senate Bill No. 620 (2017–2018 Reg. Sess.), which, effective January 1, 2018, granted the trial court discretion to strike the firearm enhancement in the interest of justice. (Stats. 2017, ch. 682, § 2 (Senate Bill 620) [amending § 12022.53, subd. (h)].) On remand, the trial court declined to strike the enhancement and defendant…