Opinion
G057809
03-25-2020
THE PEOPLE, Plaintiff and Respondent, v. JOSE RODRIGUEZ PUERTO, Defendant and Appellant.
Robert V. Vallandigham, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. C-56049) OPINION Appeal from a postjudgment order of the Superior Court of Orange County, Kimberly Menninger, Judge. Affirmed. Robert V. Vallandigham, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
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In 1985, a jury convicted defendant Jose Rodriguez Puerto of second degree murder but found it not to be true that he personally used a firearm. The court sentenced defendant to a state prison term of 15 years to life. We affirmed defendant's conviction on appeal, rejecting his argument that the evidence was insufficient to support the verdict. (People v. Puerto (Aug. 28, 1986, G003005) [nonpub. opn.].)
In April 2019, Puerto filed a petition for resentencing pursuant to Penal Code section 1170.95, in which he alleged that he was "convicted of 1st or 2nd degree murder pursuant to the felony murder rule or the natural and probable consequences doctrine" and that he "could not now be convicted of 1st or 2nd degree murder because of changes made to Penal Code § § 188 and 189, effective January 1, 2019." He further alleged that he "was convicted of 2nd degree murder under the natural and probable consequences doctrine or under the 2nd degree felony murder doctrine and I could not now be convicted of murder because of changes to Penal Code § 188, effective January 1, 2019." Finally, he alleged, "There has been a prior determination by a court or jury that I was not a major participant and/or did not act with reckless indifference to human life under Penal Code § 190.2[ subdivision (d)]."
Subsequent statutory references are to the Penal Code. --------
The court summarily denied defendant's petition, and explained: "The petition does not set forth a prima [facie] case for relief under the statute. A review of court records indicates defendant is not eligible for relief under the statute because the defendant does not stand convicted of murder or defendant's murder conviction(s) is not based on felony-murder or on a natural and probable consequences theory of vicarious liability for aiders and abettors."
Defendant timely filed a notice of appeal and we appointed counsel to represent him. Counsel did not argue against defendant but advised the court he was unable to find an issue to argue on defendant's behalf. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was given the opportunity to file written argument on his own behalf, but he has not done so.
We have examined the entire record and have not found an arguable issue on appeal. Accordingly, we affirm the postjudgment order.
DISCUSSION
Relief under section 1170.95 is available only to those "'convicted of felony murder or murder under a natural and probable consequence theory . . . .'" (People v. Martinez (2019) 31 Cal.App.5th 719, 723.) In People v. Lewis (2020) 43 Cal.App.5th 1128, 1137, the Court of Appeal held that (1) a trial court may rely on the record of conviction in determining whether the defendant's petition makes a prima facie showing that he or she falls within the provisions of the statute, and (2) that the record of conviction includes the opinion of the Court of Appeal in the underlying conviction.
Thus, we take the facts from our opinion in People v. Puerto, supra, G003005. "Puerto was prosecuted on the theory he trafficked in narcotics and murdered one of his distributers, Oriel Garcia. According to the prosecution, Garcia was no longer trusted and Puerto wished to make an example of him." (Ibid.) The evidence at trial was entirely circumstantial, but "[t]he pathologist who performed the autopsy determined the cause of death was a single gunshot wound to Garcia's right temple. . . . In the pathologist's opinion, the gun either made contact with or was very close to Garcia's head when it was fired." (Ibid.) Because the jury found the gun enhancement not true, Puerto had argued that the jury necessarily believed he only aided and abetted the murder. But we noted it did not matter. Puerto was either the perpetrator or an aider and abettor. In either case, he was a principal in the commission of the crime. (Ibid.)
Our record also includes the jury instructions used in defendant's trial. The jury was instructed that principals in a crime, are "equally guilty thereof" and include the perpetrator and those who aided and abetted the commission of the crime. The jury was not instructed on the natural and probable consequences theory of aiding and abetting liability. Nor was the jury instructed on the felony-murder rule. Further, the jury was instructed only on express malice, i.e., an intention unlawfully to kill a human being. It was not instructed on any theory of implied malice, which is the underlying theory of the natural and probable consequences doctrine.
Accordingly, we conclude the court correctly determined, based on the record of conviction in defendant's case, that he was not eligible for relief under section 1170.95. He was convicted either as a direct aider and abettor or as the perpetrator. In neither circumstance is he eligible for relief under section 1170.95. Counsel's assessment that there was no arguable issue to raise on appeal was manifestly correct.
DISPOSITION
The postjudgment order is affirmed.
IKOLA, J. WE CONCUR: MOORE, ACTING P. J. GOETHALS, J.