People v. Rodriguez CA4/3

Filed 4/10/23 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G061568
v. (Super. Ct. No. 02NF0806)
GABRIEL RODRIGUEZ, OPI NION
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Orange County, Gregg L.
Prickett, Judge. Affirmed.
Barbara A. Smith, under appointment by the Court of Appeal, for
Defendant and Appellant.
No appearance for Plaintiff and Respondent.
* * *
1
This is another of the burgeoning Wende filings occasioned by recent
legislative changes that are, not surprisingly, confusing to people who have not received a
legal education. Appellant was convicted in 2003 of attempted premeditated murder; he
fired 10 shots at his victim and hit him twice. It was found to be true that he had used a
firearm and inflicted great bodily injury. The sentences at issue here are for attempted
premeditated murder and firearm usage. He was sentenced to life with the possibility of
parole for the attempted murder and 25 years to life for the firearm use. We affirmed his
convictions on appeal. (People v. Rodriguez (Dec. 14, 2004, G032794) [nonpub. opn.].)
In 2022, appellant filed this action, seeking relief pursuant to newly-enacted
2
Penal Code section 1170.95. Section 1170.95 is the procedural mechanism for
implementing legislative changes in California law which narrow the scope of vicarious
liability for murder in two ways. First, the Legislature eliminated the natural and
probable consequences theory for that crime by providing that “[m]alice shall not be
imputed to a person based solely on his or her participation in a crime.” (§ 188, subd.
(a)(3).) Second, it reined in the felony murder rule so that it can only be applied to
nonkillers if they aided and abetted the killer in committing first degree murder, or they
were a major participant in the underlying felony and acted recklessly indifferent to
human life. (§ 189, subd. (e).)
To obtain relief under the new section, the defendant must show 1) he was
prosecuted for murder under the felony murder rule or the natural and probable
consequences doctrine, 2) he was ultimately convicted of first or second degree murder,
and 3) and he would not be liable for murder today because of how the Legislature has
redefined that offense. (§ 1170.95, subd. (a).)
1
People v. Wende (1979) 25 Cal.3d 436 (Wende).
2
That statute has since been renumbered as Penal Code section 1172.6. (Stats. 2022, ch. 58, § 10.)
Because that change was nonsubstantive and it occurred after appellant’s petition was denied, we will cite to Penal
Code section 1170.95 for ease of reference. All further statutory references are to the Penal Code.
2
The trial court appointed counsel for appellant, heard appellant’s motion
under this section and denied it. He appealed and we appointed counsel to represent him
on appeal. Counsel reviewed the record in the case and concluded there was no issue she
could argue that had a reasonable chance of success. She did not argue against her client
but requested – as the law provides – that we independently review the case and see if we
could find an issue that might be arguable. (Wende, supra, 25 Cal.3d 436.) Appellant
was given the opportunity to write to us and tell us what issues he thought might be found
in the record but did not respond.
It should be emphasized that a Wende review is not for arguments that
would necessarily be successful, but merely arguments that could be made, arguments
whose proposal would not violate ethical prohibitions about frivolous appeals. Our
review of the case was aimed at merely finding something an attorney could ethically
argue in favor of reversal. We have made such a review and found nothing.
We have found nothing because appellant does not fall within the terms of
the statute he is seeking to apply to his case. There was no application of the felony
murder rule or the natural and probable consequences doctrine in his case. The jury was
not instructed on those doctrines, and they were not argued by counsel.
The jury found he had personally used a firearm in his crimes. He was the
killer. He fired 10 shots, 2 of which hit his victim. Petitioner was not an aider and
abettor, he was the actual gunman. He would be guilty of murder under the current law
and is therefore ineligible for resentencing under section 1170.95/1172.6. The jury found
he attempted murder with premeditation; he is therefore excluded from relief under those
sections.
What’s more, appellant has already had one appeal. We affirmed his
conviction in 2004. This is not his “first appeal of right.” Under the recently decided
California Supreme Court case of People v. Delgadillo (2022) 14 Cal.5th 216, appellant
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is not entitled to appointed counsel to raise this issue; Wende review is not an entitlement
for him. Our review, conducted out of an abundance of caution given the novelty of the
statutory change which prompted appellant’s petition, is more than present law allows
him.
For both these reasons, the judgment is affirmed.
BEDSWORTH, J.
WE CONCUR:
O’LEARY, P. J.
MOORE, J.
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