Opinion
G061760
05-02-2023
THE PEOPLE, Plaintiff and Respondent, v. THYRIS RONDALE RODNEY, Defendant and Appellant.
Janice R. Mazur, 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NOT TO BE PUBLISHED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. C92112, Cheri T. Pham, Judge.
Janice R. Mazur, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
GOETHALS, J.
Thyris Rondale Rodney was convicted by a jury in 1993 of murder (Pen. Code, § 187, subd. (a)) with two special circumstances; first degree burglary, (§§ 459, 460.1, 461.1); attempted forcible rape, (§§ 664, 261, subd. (a)(2)); and arson of an inhabited structure, (§ 451, subd. (b)).
All statutory references are to this code.
The court sentenced Rodney to life without the possibility of parole. In 1995, we affirmed his conviction. (People v. Rodney (April 20, 1995, G014095) [nonpub. opn.].)
Rodney filed a petition for resentencing pursuant to section 1170.95 (later renumbered § 1172.6) in March 2022. The trial court appointed counsel to represent him. The People filed opposition to the petition. After Rodney filed a waiver of his personal presence, the court conducted a prima facie hearing at which the parties submitted on their briefs. The court took the matter under submission and later filed a written Statement of Decision in which it denied the petition.
Rodney filed a timely notice of appeal.
We appointed counsel to represent Rodney on appeal. In conducting her analysis of potential appellate issues, counsel informed us in her declaration that she had reviewed the appellate record, and consulted with a staff attorney at Appellate Defenders, Inc. Counsel then filed a brief pursuant to the traditional procedures set forth in People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738. While not arguing against her client, counsel set forth the facts of the case and suggested she was unable to find an issue to argue on his behalf. Counsel also advised Rodney of his right to file his own written argument; he has not done so. We have nonetheless reviewed the entire record. Like counsel, we have been unable to find any arguable appellate issue. We therefore affirm.
Although the Supreme Court tells us we are not required to do so in postjudgment appeals (People v. Delgadillo (2022) 14 Cal.5th 216), we have exercised our discretion to review this record.
FACTS
We extract these facts from our prior opinion.
Karol Davila's beaten and charred body was found in her blood-spattered apartment. It was under a pile of burned newspaper. Several possible accelerants were located nearby. Later that day, a woman's purse containing Davila's identification was found outside the home of Rodney's uncle who told police Rodney had been there that morning. After his arrest Rodney made several statements to investigators, the gist of which indicated he had broken into the victim's house and killed her as he tried to steal her purse.
DISCUSSION
Effective January 1, 2019, Senate Bill No. 1437 (2017-2018 Reg. Sess., Senate Bill 1437) was enacted to limit the scope of the traditional felony murder rule; it also eliminated the natural and probable consequences theory for murder. (People v. Lewis (2021) 11 Cal.5th 952, 957 (Lewis).) Pursuant to Senate Bill 1437, murder liability can no longer be "imposed on a person who [was] not the actual killer, [who] did not act with the intent to kill, or [who] was not a major participant in the underlying felony who acted with reckless indifference to human life." (Lewis, at p. 959). In addition to amending sections 188 and 189, Senate Bill 1437 also added section 1170.95 (later renumbered § 1172.6), which created a procedure through which a "person convicted of felony murder or murder under the natural and probable consequences doctrine" can petition for relief. (§ 1172.6, subd. (a).)
Rodney filed such a petition. Pursuant to section 1172.6, he was then required to make a prima facie showing in the trial court that he is entitled to the relief he seeks. (Lewis, supra, 11 Cal.5th at p. 960.) The Supreme Court observed in Lewis that "[t]he 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." (Lewis, supra, 11 Cal.5th at p. 971.)
Here, the court followed the procedure required by the statute and the Lewis court. The court concluded, "[t]he record of conviction in this case conclusively shows that petitioner was the actual killer." The court found Rodney was therefore ineligible as a matter of law for resentencing pursuant to section 1172.6. We agree.
Rodney's jury was instructed on first degree murder, second degree murder, and voluntary manslaughter. The instructions defined premeditated and deliberate first degree murder, as well as first degree felony murder.
The jury found Rodney guilty of first degree murder. It then found true both special circumstance allegations, i.e., that the first degree murder was committed during the commission of a burglary, and also during the commission of an attempted rape.
Included in the court's jury instructions was CALJIC No. 8.80.1 with this modification: "[If] you are satisfied beyond a reasonable doubt that the defendant actually killed a human being, you need not find that the defendant intended to kill in order to find the special circumstance to be true." When the jury found true both special circumstance allegations, pursuant to CALJIC No. 8.80.1, it necessarily found Rodney was the actual killer. As a result, Rodney is ineligible for the relief he now seeks.
In her brief, counsel suggests that we examine whether the trial court erred "in considering the appellate decision as part of the record of conviction." Counsel correctly notes there is a split of authority with respect to whether a trial court may consider the factual summary contained in an appellate opinion as it conducts its prima facie evaluation of a section 1172.6 petition.
In People v Flores (2022) 76 Cal.App.5th 974, our colleagues in the Fifth District ruled "the factual summary in an appellate opinion is not evidence that may be considered at an evidentiary hearing to determine a petitioner's eligibility for resentencing." (Id. at p. 988.)
In People v. Lopez (2022) 78 Cal.App.5th 1, on the other hand, our colleagues ruled that "[t]he record of conviction may include the underlying facts as presented in an appellate opinion." (Id. at p. 13.)
We need not weigh into this debate, because we agree with the trial court that "[w]ithout relying on the factual summary, it is clear from the appellate opinion that petitioner did not dispute that he was the actual killer ...." In Lewis, the Supreme Court determined that a trial court may consider the "record of conviction" after it appoints counsel to determine whether a petitioner has made a prima facie showing sufficient to warrant resentencing relief: "'"the court takes petitioner's factual allegations as true and makes a preliminary assessment regarding whether the petitioner would be entitled to relief if his or her factual allegations were proved. If so, the court must issue an order to show cause."'" '"However, if the record, including the court's own documents, "contain[s] facts refuting the allegations made in the petition," then "the court is justified in making a credibility determination adverse to the petitioner."'" (Lewis, supra, 11 Cal.5th at p. 971.)
Since Rodney's "record of conviction," exclusive of the factual summary contained in our unpublished opinion, irrefutably establishes Rodney was convicted of murder as the actual killer, his conviction survives the changes to sections 188 and 189.
We have, as permitted by Delgadillo, supra, 14 Cal.5th 216, exercised our discretion to review the entire record in this case in an effort to locate an arguable appellate issue. Like counsel, we have found none.
DISPOSITION
The postjudgment order is affirmed.
WE CONCUR: O'LEARY, P. J. MOTOIKE, J.