People v. Rodriguez CA2/8 ( 2023 )

Filed 12/12/23 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B329556
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA405944)
v.
JOE RODRIGUEZ,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County. Mark K. Hanasono, Judge. Affirmed.
Edward H. Schulman, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Charles S. Lee and Michael C. Keller, Deputy
Attorneys General, for Plaintiff and Respondent.
**********
Defendant and appellant Joe Rodriguez appeals from the
denial of his second petition for resentencing pursuant to former
Penal Code section 1170.95. Former section 1170.95 was
renumbered and recodified as section 1172.6 with no change in
the text. (Stats. 2022, ch. 58, § 10.) For clarity, we refer to
former section 1170.95 only by its new designation
(section 1172.6).
We affirm.
BACKGROUND
In 2014, defendant was convicted by a jury of one count of
first degree murder and two counts of premeditated attempted
murder arising from his participation in a gang-related shooting.
We affirmed defendant’s conviction with a modification of
sentence not relevant to the present appeal. (People v. Rodriguez
(Oct. 20, 2016, B265581) [nonpub. opn.].)
After the passage of Senate Bill No. 1437 (2017–2018
Reg. Sess.), defendant filed, in propria persona, a petition for
resentencing pursuant to section 1172.6 as to his conviction for
murder. The trial court found that defendant was not entitled to
relief as a matter of law because he was found guilty of first
degree murder as a direct aider and abettor. The court
summarily denied the petition at the prima facie stage. We
affirmed the denial. (People v. Rodriguez (Mar. 3, 2021, B305365)
[nonpub. opn.].)
Thereafter, Senate Bill No. 775 was passed (2021–2022
Reg. Sess.) which made further amendments to section 1172.6.
As relevant here, Senate Bill No. 775 expanded the scope of relief
to those defendants who had been convicted of attempted murder
under the natural and probable consequences doctrine.
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On February 3, 2022, defendant filed, in propria persona, a
second form petition for resentencing pursuant to section 1172.6,
seeking relief as to both attempted murder counts. Defendant
declared under penalty of perjury that he had been charged and
convicted of attempted murder under the felony murder rule or
the natural and probable consequences doctrine and that he could
no longer be so convicted in light of the changes made to Penal
Code sections 188 and 189. Defendant requested the
appointment of counsel.
The trial court appointed counsel for defendant. The
People filed an informal opposition brief that included a copy of
our 2016 opinion in defendant’s direct appeal and the jury
instructions from defendant’s 2014 trial.
At the hearing held March 22, 2023, defendant waived his
appearance and counsel appeared on his behalf. The court denied
defendant’s petition, finding again that, based on the record of
conviction, defendant was not entitled to sentencing relief as a
matter of law.
This appeal followed. We grant defendant’s request to take
judicial notice of our opinions and the appellate records from
defendant’s direct appeal (People v. Rodriguez, supra, B265581)
and his appeal of the denial of his first resentencing petition
(People v. Rodriguez, supra, B305365).
DISCUSSION
We independently review the denial of a section 1172.6
petition at the prima facie stage. (People v. Ervin (2021)
72 Cal.App.5th 90, 101.) Our review of the record here
demonstrates that defendant is ineligible for relief as a matter of
law. We therefore affirm the trial court’s denial of defendant’s
petition.
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Section 1172.6, subdivision (a) states that “[a] person
convicted of . . . attempted murder under the natural and
probable consequences doctrine” may file a petition for sentencing
relief. (Ibid.; People v. Coley (2022) 77 Cal.App.5th 539, 548
[§ 1172.6 “applies by its terms only to attempted murders based
on the natural and probable consequences doctrine”].)
The record of conviction here unequivocally establishes that
defendant was prosecuted and convicted of attempted murder
only under a direct aiding and abetting theory and not under a
natural and probable consequences theory. As we explained in
our 2016 opinion affirming defendant’s conviction, “[t]he jury was
not instructed on any target crimes other than murder and
attempted murder.” (People v. Rodriguez, supra, B265581.)
“[T]he prosecutor’s theory of the case was that defendant aided
and abetted a murderous attack, not that he intended some other
crime.” (Ibid.) The jury was not instructed with felony murder or
the natural and probable consequences doctrine, only with the
principles of first and second degree murder, attempted murder,
premeditation and direct aiding and abetting, including
CALCRIM Nos. 251, 400, 401, 500, 520, 521, 600 and 601.
Defendant did not establish his eligibility for resentencing
and his petition was properly denied. (People v. Strong (2022)
13 Cal.5th 698, 708 [“If the petition and record in the case
establish conclusively that the defendant is ineligible for relief,
the trial court may dismiss the petition.”].)
Defendant contends that Coley was wrongly decided and
that the record does not establish his ineligibility as a matter of
law. He says the aiding and abetting instructions as a whole
allowed the jury to impute premeditation to him based on the
premeditation of the actual perpetrator and that section 1172.6
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encompasses relief for such a theory. The statutory language
plainly does not do so. And nothing about the claimed ambiguity
of the premeditation instructions (an alleged error we already
rejected on direct appeal) alters the fact that defendant was
found guilty of two counts of attempted murder under a theory
that remains valid and was the only theory on which the jury was
instructed: direct aiding and abetting.
DISPOSITION
The order denying defendant and appellant Joe Rodriguez’s
petition for resentencing is affirmed.
GRIMES, Acting P. J.
WE CONCUR:
WILEY, J.
VIRAMONTES, J.
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