People v. Rodriguez CA4/3 ( 2023 )

Filed 5/17/23 P. v. Rodriguez CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G061945
v. (Super. Ct. No. C-79568)
ANGEL HERNANDEZ RODRIGUEZ, OPINION
Defendant and Appellant.
Appeal from an order of the Superior Court of Orange County, Gary S.
Paer, Judge. Affirmed.
Mark D. Johnson, under appointment by the Court of Appeal, for
Defendant and Appellant.
No appearance for Plaintiff and Respondent.
* * *
After Angel H. Rodriguez was convicted of second-degree murder, he filed
a petition for resentencing pursuant to Penal Code section 1170.95 (section 1170.95).
The trial court denied the order, after finding Rodriguez failed to make a prima facie case
for relief because the record of conviction showed he was the actual killer.
Rodriguez appealed, and his appointed counsel filed a brief under the
procedures outlined in People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v.
California (1967) 386 U.S. 738 (Anders). Subsequently, this court sent a letter advising
Rodriguez he had 30 days to file any supplemental brief deemed necessary, or the matter
may be dismissed as abandoned. He did not file a supplemental brief. Although
Rodriguez did not file a supplemental brief, we exercise our discretion to conduct an
independent review of the record and appointed counsel’s Wende/Anders brief. (People
v. Delgadillo (2022) 14 Cal.5th 216, 232 (Delgadillo).) As discussed below, we find no
reasonably arguable issues on appeal, and the issue suggested by counsel has no merit.
We therefore affirm.
I
FACTS AND PROCEDURAL HISTORY
In 1991, a jury convicted Rodriguez of second-degree murder, and found
true a deadly weapon enhancement. The trial court found true three prior strikes under
the Three Strikes Law. Rodriguez was sentenced to 27 years to life. This court affirmed
the judgment in an unpublished opinion. (People v. Rodriguez (1992) G011479 [unpub.
opn.].)
On November 15, 2021, appellant filed a petition for resentencing pursuant
to section 1170.95. On November 24, 2021, the trial court appointed counsel for
appellant. On January 5, 2022, the district attorney filed an opposition, attaching portions
of the record from the direct appeal, including the jury instructions and the jury verdicts.
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Following a hearing on the resentencing petition on October 19, 2022, the
trial court denied the petition. It explained:
“There has been no showing of a prima facie case that petitioner was
convicted under any now-void legal theory of murder as described in section
1170.95 of the Penal Code, now section 1172.6 of the Penal Code.
“The jury was instructed on one theory of guilt-that of an actual
perpetrator/killer. The defendant was charged with one count of murder and the
jury convicted him of Murder in the Second Degree. The instructions given to the
jury required that the People prove that the defendant acted with the specific intent
to kill. Additionally, the jury was instructed on the elements of murder. The jury
also found a weapon enhancement to be true and that the defendant personally
used a knife during the commission of the murder. The only theory of liability
used to convict is still viable under the present definition of Murder.
“Additionally, the jury was never instructed on the natural and probable
consequences theory. This was not a felony-murder case either. Defendant acted
alone and there was no reference to any other perpetrator in the case.
“Actual killers are not entitled to relief for obvious reasons. Defendant is
ineligible as a matter of law. The petition is denied.”
II
DISCUSSION
Following Wende guidelines, we have reviewed counsel’s brief and the
appellate record. To assist the court in its review, counsel identified one issue for our
consideration: Whether the trial court abused its discretion when it denied appellant’s
petition for resentencing.
Our independent review of the entire record, including the matter identified
by counsel, does not show the existence of an arguable issue. (Wende, supra, 25 Cal.3d
at pp. 442-443.) The trial court properly denied the petition because the trial evidence,
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the jury instructions given, and the verdicts returned conclusively establish the jury
convicted Rodriguez of murder based on a finding that he was the actual killer. (See
People v. Harden (2022) 81 Cal.App.5th 45, 59 [trial court properly denied resentencing
petition at prima facie stage where “record of conviction conclusively establishes, with
no factfinding, weighing of evidence, or credibility determinations, that [petitioner] was
the actual killer.”]; see also Delgadillo, supra, 14 Cal.5th at p. 233 [defendant “not
entitled to any relief under section 1172.6” because he “was the actual killer and the only
participant in the killing”].) Consequently, we affirm the order denying the petition for
resentencing. (Wende, supra, 25 Cal.3d at p. 443.)
III
DISPOSITION
The order denying Rodriguez’s petition for resentencing is affirmed.
DELANEY, J.
WE CONCUR:
GOETHALS, ACTING P.J.
SANCHEZ, J.
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