People v. Rodriguez CA2/2 ( 2023 )

Filed 6/27/23 P. v. Rodriguez CA2/2
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO
THE PEOPLE, B305739
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No.
v. BA024452)
VIDAL RODRIGUEZ,
Defendant and Appellant.
THE COURT:
Pursuant to the March 29, 2023, order of the California
Supreme Court, we vacate our January 29, 2021, decision in this
matter. Upon reconsideration in light of People v. Delgadillo
(2022) 14 Cal.5th 216, 232–233 & fn. 6 (Delgadillo), we exercise
our discretion to conduct an independent review of the record.
Based on that independent review, we affirm the trial court’s
order denying the Penal Code section 1172.61 (former § 1170.95)2
petition filed by defendant and appellant Vidal Rodriguez.
BACKGROUND
In 1991, a jury found defendant guilty of one count of
second degree murder. (§ 187, subd. (a); People v. Riojas (Jul. 13,
1993, B063404) [nonpub. opn.], at p. 1.) The trial court sentenced
defendant to 15 years to life in state prison. (Ibid.) On direct
appeal, we affirmed the judgment as to defendant. (Id. at p. 18.)
On February 18, 2019, defendant filed a petition for
resentencing under section 1172.6 and was appointed counsel.
The People filed an opposition to the petition which, among other
things, contested the constitutionality of Senate Bill
Number 1437 (2017-2018 Reg. Sess.), the bill enacting section
1172.6. The People attached multiple exhibits, including this
court’s opinion in defendant’s direct appeal and the jury
instructions given at defendant’s 1991 trial. Defendant’s counsel
filed a reply.
On January 30, 2020, the trial court held a hearing on
defendant’s petition for resentencing. After receiving the record
of Rodriguez’s appeal and hearing argument, the court took the
matter under submission.
On February 3, 2020, the trial court denied defendant’s
petition, finding that defendant was not eligible for relief under
section 1172.6 because he was convicted as an aider and abettor
and not under the natural and probable consequences doctrine or
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2 Effective June 30, 2022, section 1170.95 was renumbered
section 1172.6, with no change in text. (Stats. 2022, ch. 58, § 10.)
For simplicity, we refer to the section by its new numbering.
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a felony murder theory of liability. Defendant timely appealed
from the court’s order.
Counsel was appointed to represent defendant in
connection with this appeal. After reviewing the record,
appointed counsel filed a brief raising no issues and asking this
court to independently review the entire record on appeal for
arguable issues, pursuant to the procedures set forth in People v.
Wende (1979) 25 Cal.3d 436 (Wende). Counsel stated that she
had informed defendant that he could file a supplemental brief
and had sent him the transcripts of the record on appeal and a
copy of the opening brief.
On September 15, 2020, we sent a notice to defendant
stating the following: “Counsel appointed to represent appellant
on appeal has filed an appellant’s opening brief that raises no
issues. ([Wende, supra,] 25 Cal.3d [at p.] 442.) [¶] Appointed
counsel is directed to send the record of this appeal and a copy of
appellant’s opening brief to appellant immediately. Within 30
days of the date of this notice, appellant may submit a
supplemental brief or letter stating any grounds for an appeal, or
contentions, or arguments which appellant wishes this court to
consider.” Defendant timely filed a supplemental brief.
On January 29, 2021, we affirmed the trial court’s order
denying defendant’s section 1172.6 petition. (People v. Rodriguez
(Jan. 29, 2021, B305739) [nonpub. opn.], at p. 4.) Following the
procedures established in People v. Cole (2020) 52 Cal.App.5th
1023, 1039–1040, review granted October 14, 2020, S264278, we
reviewed and rejected the arguments raised in defendant’s
supplemental brief, but did not conduct an independent review of
the record. (People v. Rodriguez, supra, B305739, at p. 3.)
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Defendant filed a petition for review with the California
Supreme Court, which was granted on April 14, 2021. In an
order filed on March 29, 2023, the California Supreme Court
transferred the case back to this court “with directions to vacate
[our] decision and reconsider whether to exercise [our] discretion
to conduct an independent review of the record or provide any
other relief in light of [Delgadillo, supra,] 14 Cal.5th [at pp.] 232–
233 & fn. 6.”
On April 3, 2023, defendant’s appointed counsel filed a brief
asking us to conduct an independent review of the record. On
April 13, 2023, the People filed a letter urging us to affirm the
judgment without further review.
DISCUSSION
Delgadillo prescribed the following procedures when
appointed counsel finds no arguable issues in an appeal from the
denial of a section 1172.6 petition:
“(1) [C]ounsel should file a brief informing the court of that
determination, including a concise recitation of the facts bearing
on the denial of the petition; and (2) the court should send, with a
copy of counsel’s brief, notice to the defendant, informing the
defendant of the right to file a supplemental letter or brief and
that if no letter or brief is filed within 30 days, the court may
dismiss the matter. [Citations.]
“If the defendant subsequently files a supplemental brief or
letter, the Court of Appeal is required to evaluate the specific
arguments presented in that brief and to issue a written opinion.
The filing of a supplemental brief or letter does not compel an
independent review of the entire record to identify unraised
issues. [Citations.] If the defendant does not file a supplemental
brief or letter, the Court of Appeal may dismiss the appeal as
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abandoned. [Citation.] If the appeal is dismissed as abandoned,
the Court of Appeal does not need to write an opinion but should
notify the defendant when it dismisses the matter. [Citation.]
While it is wholly within the court’s discretion, the Court of
Appeal is not barred from conducting its own independent review
of the record in any individual section 1172.6 appeal.
[Citations.]” (Delgadillo, supra, 14 Cal.5th at pp. 231–232.)
Here, we provided notice to defendant before Delgadillo
was issued. Although our notice informed defendant of his right
to file a supplemental brief, it did not inform him that his appeal
could be dismissed if a supplemental brief was not filed.
Additionally, the notice “affirmatively cited Wende after
[defendant]’s counsel had filed a brief pursuant to Wende.”
(Delgadillo, supra, 14 Cal.5th at p. 233.) Thus, “the notice in this
case was suboptimal.”3 (Ibid.)
Under these circumstances and “in the interest of judicial
economy” (Delgadillo, supra, 14 Cal.5th at p. 222), we have
exercised our discretion to undertake an independent review of
the entire record on appeal. Based on this independent review,
we determine that defendant is not entitled to any relief under
section 1172.6. We are satisfied that defendant’s appellate
counsel has fully complied with her responsibilities and that no
arguable issues exist.
3 As the People argued in their April 13, 2023 letter, these
notice deficiencies are arguably harmless because defendant
ultimately filed a supplemental brief, which we reviewed and
addressed in our 2021 opinion. Regardless, in the interest of
thoroughness, we exercise our discretion to independently review
the record of defendant’s case.
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DISPOSITION
The order denying defendant’s section 1172.6 petition is
affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
____________________________________________________________
LUI, P. J. ASHMANN-GERST, J. HOFFSTADT, J.
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