People v. Rodriguez CA2/8 ( 2023 )

Filed 6/21/23 P. v. Rodriguez CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B325369
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. PA057565-01
v.
JOSE LUIS RODRIGUEZ,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles Count, Hayden Zacky, Judge. Affirmed.
John F. Schuck, under appointment by the Court of Appeal,
for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
——————————
Pursuant to People v. Delgadillo (2022) 14 Cal.5th 216, we
review this appeal from the denial of a petition for recall of
sentence brought under Penal Code former section 1170.95.1 We
affirm the trial court’s order.
PROCEDURAL BACKGROUND
On April 27, 2009, a jury found appellant Jose Rodriguez
guilty of willful, deliberate, premeditated attempted murder in
violation of Penal Code sections 664 and 187, subdivision (a)
2
(counts 1 and 2) ; possession of a firearm by a felon in violation of
section 12021, subdivision (a)(1) (count 3); and assault with a
semi-automatic firearm in violation of section 254, subdivision (b)
(counts 5 and 6). Appellant was convicted of shooting two men
outside the apartment building where his mother lived.
The jury also found true firearm use and discharge allegations,
great bodily injury allegations, and gang enhancements. In
addition to the jury verdicts, appellant pleaded guilty to resisting
an executive officer in violation of section 69 (count 4).
On July 23, 2009, appellant was sentenced to life in prison
with the possibility of parole plus 50 years on the attempted
murder charges with the firearm enhancements. He was
sentenced to a consecutive three-year term on the resisting
charge. The sentences on counts 3, 5, and 6 were stayed.
Appellant was the sole defendant charged in the amended
1 Effective June 30, 2022, former section 1170.95 was
renumbered section 1172.6 with no change in text. (Stats. 2022,
ch. 58, § 10.) In this opinion we use the new code section.
2 Further undesignated statutory references are to the Penal
Code.
2
information. This court affirmed the convictions on appeal.
(People v. Rodriguez (Jan. 24, 2011, B218361) [nonpub. opn.].)
On February 22, 2022, appellant filed a petition for
resentencing under section 1172.6. The court appointed counsel
on appellant’s behalf. The People filed a response.
On October 5, 2022, the trial court did not issue an order to
show cause. Instead, it found appellant ineligible for relief
because 1) appellant was prosecuted as the sole actual
perpetrator who acted with malice and with the intent to kill
during the commission of the crimes; and 2) the jury was not
instructed on the natural and probable consequences doctrine or
aiding and abetting.
Appellant filed a timely notice of appeal.
We appointed counsel to represent appellant on appeal. On
April 20, 2023, counsel filed a brief pursuant to People v.
Delgadillo. The brief raises no issues. Counsel advises that
appellant was sent the record on appeal as well as a copy of the
brief. Counsel told appellant he may file a supplemental brief
within 30 days raising any issue he wishes us to consider.
On April 20, 2023, this court sent appellant a notice that a
brief raising no issues had been filed on his behalf. We advised
appellant he had 30 days within which to submit a supplemental
brief or letter stating any ground for an appeal he wishes this
court to consider. Appellant was advised that if he did not file a
supplemental brief, his appeal may be dismissed as abandoned.
3
On May 5, 2023, appellant filed a supplemental brief
raising several issues: the prosecutor and his defense lawyer
“railroaded” him; he acted in self-defense when he was confronted
by two gang members; he had no intent to kill and did not plan
the shooting “like they claimed I did”; and he did not act for the
benefit of a gang.
DISCUSSION
First, counsel has asked us to conduct an independent
review of the record. We are not required to do so in the context
of an appeal from an order denying a petition for resentencing
and we decline to do so. (People v. Delgadillo, supra, 14 Cal.5th
at p. 226.)
Next, appellant’s issues are not properly before our court.
Petitions for resentencing under section 1172.6 carry out the
intent of Senate Bill No. 1437 (2017–2018 Reg. Sess.) which was
“to ensure that murder liability is not imposed on a person who is
not the actual killer, did not act with the intent to kill, or was not
a major participant in the underlying felony who acted with
reckless indifference to human life.” (Stats. 2018, ch. 1015, § 1,
subd. (f); People v. Lewis (2021) 11 Cal.5th 952, 967.) Petitions
under section 1172.6, then, address convictions where a
defendant was not the killer, but was held vicariously liable on
one of several theories of liability identified in the statute. The
petition to recall sentence under section 1172.6 is not another
opportunity to challenge the original judgment on other grounds.
4
DISPOSITION
The order denying the petition for recall of sentence is
affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
STRATTON, P. J.
We concur:
GRIMES, J.
VIRAMONTES, J.
5