People v. Rodriguez CA2/8 ( 2024 )

Filed 10/25/24 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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, B337063
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. PA014564-01)
v.
RAUL LOREDO RODRIGUEZ,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Hayden Zacky, Judge. Affirmed.
John L. Staley, under appointment by the Court of Appeal,
for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
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Pursuant to People v. Delgadillo (2022) 14 Cal.5th 216(Delgadillo), we review this appeal of an order denying Raul
Rodriguez’s petition for recall of sentence brought under Penal
Code1 section 1170, subdivision (d)(1). We affirm.
BACKGROUND
On November 21, 1994, Rodriguez pled guilty to second
degree murder in violation of section 187, subdivision (a). The
trial court sentenced him to 15 years to life in prison. On
November 7, 2023, Rodriguez filed a petition for recall of sentence
pursuant to section 1170, subdivision (d)(1) and People v. Heard
(2022) 83 Cal.App.5th 608 (Heard). He argued that his sentence
of 15 years to life was the functional equivalent of a sentence
without the possibility of parole and therefore he was eligible to
have his sentence recalled.
On February 20, 2024, the trial court held a hearing on the
section 1170 petition. It noted that Rodriguez had already had
several parole hearings—March 4, 2003, May 11, 2006, April 6,
2010, and March 23, 2017—and another one was scheduled for
March, 2027. The trial court denied the petition on the ground
that the sentence of 15 years to life is not the functional
equivalent of a sentence of life without the possibility of parole.
The court also denied Rodriguez’s previous request that the court
consider a recall of sentence under section 1172.1 (Assembly Bill
No. 600 (2023–2024 Reg. Sess.)). Rodriguez filed a timely notice
of appeal.
The facts of the crime are not relevant to the petition, but
we recite them to provide context only. On March 21, 1993,
Rodriguez, a juvenile, shot and killed Jose Salavia while
1 Undesignated Statutory references are to the Penal Code.
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Rodriguez and his uncle were driving Salavia to a bus station so
Salavia could travel to Mexico.
On July 5, 2024, we appointed counsel to represent
Rodriguez on appeal. On July 9, 2024, counsel filed a no-issue
brief pursuant to People v. Delgadillo. Counsel also asked us to
conduct an independent review of the record. Counsel advised us
they had told appellant he may file his own supplemental brief
within 30 days. Counsel sent Rodriguez transcripts of the record
on appeal as well as a copy of the brief.
On July 10, 2024, this court sent Rodriguez notice that a
brief raising no issues had been filed on his behalf. We advised
him he had 30 days within which to submit a supplemental brief
or letter stating any issues he believes we should consider. We
also advised him that if he did not file a supplemental brief, the
appeal may be dismissed as abandoned.
On September 23, 2024, Rodriguez filed a supplemental
brief, in which argues 1) the trial court abused its discretion
when it failed to consider youth-related mitigating factors in
ruling on his section 1170 petition; 2) his incarceration is
constitutionally excessive in light of his hallmark features of
youth and In re Palmer (2021) 10 Cal.5th 959; 3) the trial court
abused its discretion when it failed to find the parole board’s
continual finding of unsuitability had, in fact, transformed his
sentence of 15 years to life with the possibility of parole into a de
facto sentence of life without the possibility of parole; 4) his trial
counsel was ineffective when it failed to raise his state and
federal cruel and unusual punishment claim; 5) the trial court
improperly denied his petition for resentencing under section
1172.6 when it failed to consider that due to his hallmark
features of youth, he lacked the reckless indifference to human
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life state of mind required under sections 188 and 189; 6) the
record of conviction does not conclusively establish he is ineligible
for resentencing under section 1172.6 at the prima facie stage for
either voluntary manslaughter or second degree murder.
DISCUSSION
First, the record does not include a written or oral motion
for resentencing relief under section 1172.6. Although there is a
minute order dated February 20, 2024, stating, “The Defendant’s
oral motion for Resentencing pursuant to Penal Code section
1172.6 is argued and denied,” the transcript of the hearing does
not reflect that Rodriguez made, or the court considered, any oral
motion or written petition pursuant to that section. The clerk’s
transcript includes no such motion. Neither does counsel recite
or refer to such a motion or request in the no-issue brief.
Whether the recitals in the clerk’s minutes should prevail as
against contrary statements in the reporter’s transcript must
depend upon the circumstances of each case. Where a conflict
cannot be harmonized, that part of the record will prevail, which,
because of its origin and nature or otherwise, is entitled to
greater credence. (People v. Smith (1983) 33 Cal.3d 596, 599.)
Here we find the reporter’s transcript is entitled to greater
credence as a verbatim record of the trial court’s rulings, as
opposed to the clerks’ rendition of what they thought had
happened at the hearing. Therefore, on appeal we do not
consider Rodriguez’s eligibility for relief under section 1172.6.
Next, Rodriguez asks us to interpret section 1170,
subdivision (d)(1). We consider issues of statutory interpretation
de novo. (Heard, supra, 83 Cal.App.5th at p. 622.) Section 1170,
subdivision (d)(1) permits an inmate who was under the age of 18
at the time of the crime and was sentenced to life without parole
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(LWOP) to petition for recall of sentence after 15 years of
incarceration. (§ 1170, subd. (d)(1)(A).) In Heard, the Court of
Appeal held that this statutory right extends to those sentenced
to the functional equivalent of LWOP. (Heard, at pp. 633–634.)
“Functional equivalent of LWOP” means “the release date is near
or beyond the juvenile’s life expectancy.” (People v. Carter (2018)
26 Cal.App.5th 985, 995.) The California Supreme Court has
held a 50-year sentence is a de facto, or functionally equivalent,
sentence of life without parole. (People v. Contreras (2018)
4 Cal.5th 349, 368–370.) There, the Court declined to set a
minimum number of years that qualify as a de facto LWOP and
instead followed the reasoning of Graham v. Florida (2010)
560 U.S. 48, 74–79, to wit, that a lawful sentence must offer hope
of restoration, a chance to demonstrate maturity and reform, a
chance for fulfillment outside of prison walls and a chance for
reconciliation with society. (Contreras, at p. 367.)
On this record, which includes Rodriguez’s numerous
certificates and commendations for betterment, completion of
classes and rehabilitation programs, and service to the prison
population, we conclude his 15-year-to-life sentence with four
prior parole hearings and another hearing already set for 2027
has offered him a chance for reconciliation with society, a chance
to demonstrate maturity and reform, hope of restoration, and a
chance for fulfillment outside of prison walls. It is therefore not
the equivalent of life without parole. That he will be in his early
50’s at his next parole hearing does not change the calculus.
Rodriguez cites In re Palmer in support of his argument
that the Board of Parole Hearings’s continued denial of parole
has transformed his incarceration into LWOP. Palmer held that
habeas corpus relief is available to inmates whose continued
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incarceration has become constitutionally excessive due to parole
unsuitability findings by the Board of Parole Hearings. (In re
Palmer, supra, 10 Cal.5th at p. 966.)
Rodriguez argues that unless an inmate has a perfect
record, he will not be considered suitable for parole and that
policy has rendered his sentence an LWOP term. In the trial
court he submitted no evidence as to the reasons the members of
the Board of Parole Hearings found him unsuitable. On appeal,
he has included transcripts of his March 23, 2016 parole hearing
where the Board considered him a danger to society due to his
record of recent regulatory violations and discipline in prison.
We do not accept Rodriguez’s unsubstantiated leap of logic that
the Board’s finding of unsuitability for parole is due to its policy
of only granting parole to those with perfect records. (In re
Lawrence (2008) 44 Cal.4th 1181, 1227 [if inmate remains a
danger the Boad of Parole Hearings can and must decline to set a
parole date].) The Board’s finding in his case, without more, does
not transform his sentence into LWOP. In this regard we reject
his reliance on Palmer.
Rodriguez also argues his trial counsel was ineffective for
failing to argue that his continued incarceration was cruel and
unusual punishment. There is no constitutional right to the
effective assistance of counsel in state postconviction proceedings.
(Delgadillo, supra, 14 Cal.5th at p. 226.)
We decline to exercise our discretion to conduct an
independent review of the record. (Delgadillo, supra, 14 Cal.5th
at p. 232.)
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DISPOSITION
The order denying the section 1170 petition is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
STRATTON, P. J.
We concur:
WILEY, J.
VIRAMONTES, J.
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