People v. Rodriguez CA2/8

Filed 3/3/21 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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, B305365
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. David R. Fields, Judge. Affirmed.
Edward H. Schulman, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Charles S. Lee and Paul S. Thies, Deputy
Attorneys General, for Plaintiff and Respondent.
**********
Defendant and appellant Joe Rodriguez was convicted of
one count of first degree murder and two counts of premeditated
attempted murder arising from his participation in a 2012 gang-
related shooting. In 2016, 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.) in 2018, defendant filed a petition for resentencing
pursuant to Penal Code section 1170.95. Section 1170.95 was
enacted as part of the legislative changes effected by Senate Bill
No. 1437 and became effective January 1, 2019. (Stats. 2018,
ch. 1015, § 4.) Defendant, acting in propria persona, filed a form
petition in which he checked the boxes stating he had been
convicted of first or second degree 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 sections 188 and 189 by Senate Bill No. 1437. Defendant
also requested the appointment of counsel. Defendant’s petition
did not seek relief with respect to his convictions for attempted
murder.
At a hearing in February 2020, the trial court summarily
denied defendant’s petition without appointing counsel. Relying
on our prior opinion affirming defendant’s conviction, the trial
court found defendant was not eligible for resentencing and could
not make out a prima facie case because he had been convicted as
a direct aider and abettor and not under a natural and probable
consequences theory.
Defendant appealed. He contends the trial court erred in
summarily denying his resentencing petition without first
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appointing him counsel and allowing an evidentiary hearing.
Defendant argues the court’s summary denial is at odds with the
statutory language and the legislative history and violates his
rights to due process and to counsel under both the state and
federal Constitutions.
We disagree. Penal Code section 1170.95, subdivision (c)
provides the court “shall review the petition and determine if the
petitioner has made a prima facie showing that the petitioner
falls within the provisions of this section.” The statutory
language, read in context, contemplates an initial eligibility
determination by the court. Allegations stated in a resentencing
petition may be erroneous. Where there is no reasonable factual
dispute regarding eligibility for relief, it would be a waste of
judicial resources to automatically require the appointment of
counsel and briefing on a moot point. Several courts have
interpreted the statutory language and have concluded that a
defendant seeking resentencing is entitled to appointment of
counsel only after demonstrating a prima facie case, and the
Supreme Court is now considering the issue. (See, e.g., People v.
Lewis (2020) 43 Cal.App.5th 1128, 1139–1140, review granted
Mar. 18, 2020, S260598 (Lewis); People v. Cornelius (2020)
44 Cal.App.5th 54, 58, review granted Mar. 18, 2020, S260410;
People v. Verdugo (2020) 44 Cal.App.5th 320, 328–332, review
granted Mar. 18, 2020, S260493 (Verdugo); People v. Tarkington
(2020) 49 Cal.App.5th 892, 901–902, review granted Aug. 12,
2020, S263219 (Tarkington).)
Pending guidance from the Supreme Court, we adopt the
persuasive analyses in these decisions. The statutory framework
supports the trial court’s authority to make an initial eligibility
determination as a matter of law without appointing counsel.
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Further, defendant has not persuaded us to depart from our
decision in People v. Falcone (2020) 57 Cal.App.5th 272, review
granted January 27, 2021, S266041. The denial of counsel did
not infringe on defendant’s constitutional rights. (Id. at p. 279
[Penal Code “section 1170.95 is an act of lenity. If the trial court
acted erroneously in declining to appoint counsel, that error does
not constitute a violation of appellant’s constitutional rights”].)
The trial court also did not err in relying on our prior
opinion in making its eligibility determination. Numerous courts
have concluded the prior opinion from a defendant’s direct appeal
may be considered by the trial court as part of the record of
conviction in ruling on a resentencing petition. (See e.g., Lewis,
supra, 43 Cal.App.5th at pp. 1137–1138, review granted Mar. 18,
2020, S260598; Verdugo, supra, 44 Cal.App.5th at pp. 329–330,
333, review granted Mar. 18, 2020, S260493; Tarkington, supra,
49 Cal.App.5th at p. 899, fn. 5, review granted Aug. 12, 2020,
S263219.) Pending the Supreme Court’s resolution of this issue
in Lewis, we adopt the analyses in these decisions.
Here, the record of conviction demonstrates the trial court
did not err in concluding as a matter of law defendant could not
establish eligibility for resentencing. Defendant was charged
only with murder and attempted murder. As we explained in our
prior 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.)
Defendant was prosecuted as a direct aider and abettor, not on a
theory of felony murder or under the natural and probable
consequences doctrine. “[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.) Defendant could still be
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convicted under the amended murder statutes. He did not
establish eligibility for resentencing. (Pen. Code, § 1170.95,
subd. (a) [only persons “convicted of felony murder or murder
under a natural and probable consequences theory” may file a
petition seeking resentencing].)
DISPOSITION
The order denying defendant’s resentencing petition is
affirmed.
GRIMES, J.
WE CONCUR:
BIGELOW, P. J.
WILEY, J.
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