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People v. Rodriguez

California Court of Appeals, Fourth District, Third Division
Apr 26, 2024
No. G062494 (Cal. Ct. App. Apr. 26, 2024)

Opinion

G062494

04-26-2024

THE PEOPLE, Plaintiff and Respondent, v. ERNESTO RODRIGUEZ, Defendant and Appellant.

Marilee Marshall, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.


NOT TO BE PUBLISHED

Appeal from a postjudgment order of the Superior Court of Orange County, Super. Ct. No. 05NF4815, Jonathan S. Fish, Judge.

Marilee Marshall, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

OPINION

SANCHEZ, J.

Defendant Ernesto Rodriguez appeals from an order denying his petition for resentencing pursuant to Penal Code section 1172.6. Appointed counsel filed a brief pursuant to People v. Delgadillo (2022) 14 Cal.5th 216, to inform the court that counsel had found no arguable issues and to request that we exercise our discretion to conduct an independent review of the record. In accordance with Delgadillo, defendant was given the opportunity to file a supplemental brief and was advised that the court might dismiss his appeal, as abandoned, if he failed to do so. Defendant did not file a supplemental brief. We nonetheless exercise our discretion to conduct an independent review of the record. We have examined the entire record and have found no arguable issues. (Id. at p. 232.)

All further statutory references are to the Penal Code.

BACKGROUND

In March 2006, an information was filed charging defendant with attempted murder (§§ 187, subd. (a), 664; count 1), discharging a firearm at an occupied vehicle (§ 246; count 2), street terrorism (§ 186.22, subd. (a); count 3), and possession of a firearm by a felon (§ 12021, subd. (a)(1); count 5). The information alleged the attempted murder was committed willfully, deliberately, and with premeditation.

Count 4 was alleged against a codefendant.

As enhancements, the information also alleged, as to count 1, that defendant intentionally and personally discharged a firearm within the meaning of section 12022.53, subdivision (c), and alleged as to counts 1 and 2 that defendant committed the offenses for the benefit of and in association with a criminal street gang in violation of section 186.22 subdivision (b)(1). The information alleged defendant had previously been convicted of a serious felony.

A jury trial was conducted in November 2006. The jury was instructed on two theories of liability: direct commission of the crime and aiding and abetting someone else in the commission of the crime. The jury found defendant guilty on counts 1, 2, and 5, and found to be true the attendant enhancement allegations. The jury was unable to reach a verdict on count 3. The trial court declared a mistrial as to that count, and it was subsequently dismissed by the prosecution.

At a bifurcated proceeding, the court found the prior felony conviction allegation to be true. The court sentenced defendant to a prison term of 30 years, comprised as follows: Five years on the count 1; twenty years for the firearm enhancement, and five years for the prior serious felony conviction. In an unpublished opinion, a panel of this court affirmed the conviction. (People v. Rodriguez (June 26, 2008, G038874).)

DEFENDANT'S PETITION FOR RESENTENCING

In January 2023, defendant filed a petition for resentencing pursuant to section 1172.6. He alleged that an information had been filed against him that "allowed the prosecution to proceed under a theory of felony murder, murder under the natural and probable consequences doctrine, or other theory under which malice is imputed to a person based solely on that person's participation in the crime, or attempted murder under the natural and probable consequences doctrine." He also alleged he could not presently be convicted of attempted murder due to changes made to sections 188 and 189, effective January 1, 2019.

Defendant's petition indicated it was filed pursuant to former section 1170.95. Former section 1170.95 was renumbered to section 1172.6 effective June 30, 2022, without substantive changes. (Stats. 2022, ch. 58, § 10.)

The People filed a response which included, as exhibits, the abstract of judgment, the register of actions, the felony information, the verdict forms, the Court of Appeal opinion, and the jury instructions. Defendant, now represented by counsel, filed a brief in support of his resentencing petition.

The trial court conducted a hearing, at the conclusion of which the court denied defendant's petition for resentencing. The court issued a statement of decision which stated: "The court has reviewed the motions and the exhibits. The court relies solely upon the jury instructions and verdict forms as they relate to count one. [¶] There has been no showing of a prima facie case that [defendant] was convicted under any now-void legal theory of Attempted Murder. [¶] Relating to the count of Attempted Murder, the jury was instructed generally on Aiding and Abetting ('Cal Crim' 400-01) and the elements of attempted murder ('Cal Crim' 600). The only theories of guilt instructed upon, as it relates to [defendant], required the finding of a 'specific intent to kill.' Therefore, he was convicted under a still-viable definition of Attempted Murder." Defendant timely appealed.

DISCUSSION

Denial of a resentencing petition at the prima facie stage is warranted if the record of conviction demonstrates the petitioner is ineligible for relief as a matter of law. (People v. Lopez (2022) 78 Cal.App.5th 1, 14.) That is a purely legal conclusion subject de novo review. (Ibid.)

A defendant convicted of attempted murder is eligible for relief under section 1172.6 only if that conviction was based on the natural and probable consequences doctrine. (People v. Coley (2022) 77 Cal.App.5th 539, 548.) Thus, a defendant convicted of attempted murder either as an actual perpetrator or a direct aider and abettor is not eligible for relief. (People v. Cortes (2022) 75 Cal.App.5th 198, 204.)

Because counsel was appointed, and the parties were given the opportunity for briefing, the trial court could rely on the record of conviction to determine whether defendant made a prima facie case for relief under section 1172.6. (People v. Lewis (2021) 11 Cal.5th 952, 957.) "The record of conviction will necessarily inform the trial court's prima facie inquiry under section [1172.6], allowing the court to distinguish petitions with potential merit from those that are clearly meritless." (Id. at p. 971.)

The record of conviction in the present case establishes as a matter of law that defendant is ineligible for relief under section 1172.6. The jury instructions demonstrate that only two theories of liability were presented at trial-direct commission and aiding and abetting. The jury was not instructed on the natural and probable consequences doctrine. Because defendant could only have been convicted of attempted murder as an actual perpetrator or a direct aider and abettor he is not eligible for relief under section 1172.6.

DISPOSITION

The postjudgment order is affirmed.

WE CONCUR: O'LEARY, P. J., BEDSWORTH, J.


Summaries of

People v. Rodriguez

California Court of Appeals, Fourth District, Third Division
Apr 26, 2024
No. G062494 (Cal. Ct. App. Apr. 26, 2024)
Case details for

People v. Rodriguez

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. ERNESTO RODRIGUEZ, Defendant and…

Court:California Court of Appeals, Fourth District, Third Division

Date published: Apr 26, 2024

Citations

No. G062494 (Cal. Ct. App. Apr. 26, 2024)