People v. Rodriguez

Filed 12/7/20
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE, B303099

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA071098)
v.

DAVID DANIEL RODRIGUEZ,

Defendant and Appellant.

APPEAL from an order of the Superior Court of
Los Angeles County, Mike Camacho, Judge. Reversed and
remanded.
Eric R. Larson, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Steven D. Matthews, Supervising
Deputy Attorney General, Michael J. Wise, Charles Lee, Deputy
Attorneys General, for Plaintiff and Respondent.
______________________
 A jury acquitted David Daniel Rodriguez and Alonso
Delgado of the first degree premeditated murder of Frankie
Lopez, found both men guilty of second degree murder and also
found true special allegations a principal had intentionally
discharged a firearm causing Lopez’s death and the murder had
been committed for the benefit of a criminal street gang.
Rodriguez and Delgado were each sentenced to state prison terms
of 40 years to life. This court affirmed the convictions on direct
appeal. (People v. Delgado (May 31, 2007, B187062) [nonpub.
opn.].)
On January 7, 2019 Rodriguez petitioned to vacate his
murder conviction and for resentencing under Penal Code
1
section 1170.95. Rodriguez attached to the petition a copy of
CALJIC No. 3.02, the natural and probable consequences
instruction given at his trial. After appointing counsel to
represent Rodriguez and conducting a hearing following issuance
of an order to show cause, the superior court denied the petition,
finding, “[T]here is sufficient evidence in the record to support an
express malice murder theory for purposes of the standard of
proof required that would implicate Mr. Rodriguez in the killing
of Mr. Frankie Lopez.”
On appeal Rodriguez contends the superior court
committed prejudicial error by applying an incorrect standard of
proof and by relying on inadmissible hearsay evidence to support
its finding as to express malice. Rodriguez also argues, when
evaluated under the proper standard, the court’s finding he
either was the actual shooter or directly aided and abetted
Lopez’s murder was not supported by substantial evidence.

1
Statutory references are to this code.

2
 As the court of appeal did recently in People v. Lopez (2020)
56 Cal.App.5th 936 (Lopez), we hold section 1170.95 requires the
prosecutor to prove beyond a reasonable doubt each element of
first or second degree murder under current law to establish a
petitioner’s ineligibility for relief under that statute. We agree
with Rodriguez the superior court here used an improper
standard, concluding he was ineligible for relief under
section 1170.95 because the record could support a finding of
express malice murder beyond a reasonable doubt, rather than
based on its own finding beyond a reasonable doubt that
Rodriguez would be guilty of murder within the meaning of
sections 188 and 189, as amended by Senate Bill No. 1437 (2017-
2018 Reg. Sess.) (Stats. 2018, ch. 1015) (Senate Bill 1437).
Accordingly, we reverse the order denying Rodriguez’s petition
and remand for a new evidentiary hearing on Rodriguez’s
eligibility for relief.
FACTUAL AND PROCEDURAL BACKGROUND
1. Rodriguez’s Conviction for Murder
The People’s theory of the case was retaliation for an
earlier, gang-related shooting of Rodriguez, who, like his
codefendant Delgado, was a Pomona Sur Trece gang member.
On December 25, 2004 at approximately 8:00 p.m., an
unidentified man knocked on Luci Garcia’s apartment door and
asked for Frankie Lopez, her son, by name and said he wanted to
2
speak to him. Lopez, who was standing behind his mother when
she opened the door, followed the man from the apartment and
closed the door. Garcia again opened the door and saw Lopez

2
Our summary of the evidence is primarily based on the
statement of facts in this court’s 2007 opinion, which both
Rodriguez and the Attorney General agree is accurate.

3
walking down the hallway with the unidentified man and
Delgado, who looked back and made eye contact with her.
Lopez’s sister went into the hallway a few seconds after
Lopez left the apartment and saw Lopez with Delgado standing
on the porch at the end of the hallway. Rodriguez was off the
porch in the parking lot/alley. The unidentified man was still
standing in the hallway. Suddenly, Lopez began running toward
his sister. The sister heard a gunshot. A neighbor heard a voice
say “Get him, dog. Get him.” After a second shot was fired,
Lopez fell to the ground. He died from a gunshot wound to the
back of his head.
Approximately three weeks prior to Lopez’s shooting
Rodriguez had fought in the parking lot of Lopez’s apartment
building with Anthony Coronado, a member of the rival gang
Azusa 13, because, according to Rodriguez, Coronado “wanted to
come and talk shit to me, and disrespected me.” Coronado had
previously lived with Lopez’s family for approximately two years
and was a friend of Lopez. (Lopez’s sister said Coronado was
“like a cousin.”) A week or two after the fight Rodriguez was shot
in the back while he was at a park across the street from the
apartment building. Lopez’s sister testified she was outside her
apartment just before Rodriguez got shot and saw Coronado cover
his face with a bandana and run across the street to the park
with a rifle. After Lopez’s sister heard shots fired, Coronado ran
back to her apartment, where he left the rifle. Although
Rodriguez claimed he did not know who shot him, he admitted in
a videotaped interview with detectives, which was played for the
jury, he knew there would be retaliation for his fight with
Coronado.

4
 Delgado explained the motivation for attacking Lopez, who
was not a gang member, in a tape recorded police interview
introduced at Delgado and Rodriguez’s joint trial only as to
Delgado. Delgado admitted he had gone to Lopez’s door, but
claimed he had walked back to the car and was opening the car
door when the shooting occurred and did not know the other men
intended to shoot Lopez. Delgado told detectives his “homies”
wanted Delgado to come with them to talk to Lopez because
“Frankie had everything to do with all this that happened. . . .
He was the main person they had to kill for every single
thing. . . . The fool that shot [Rodriguez] wasn’t even a concern.”
Delgado explained his fellow gang members’ perspective,
“Because if we take [Frankie] out, we don’t got to worry about
this fool coming over here no more doing that, cause’ [sic] Frankie
can’t call them and tell them yea sur trece is right there in the
park. . . . Frankie can’t do that no more. He can’t shoot at us,
and run and hide in Frankie’s house until the police leave again,
he can’t do that no more.” Delgado denied Rodriguez had been
present but would not identify the others who were there. He
also claimed his friends had told him they were not going to kill
Lopez; but Delgado acknowledged he knew they were taking a
gun and said to his friends, “You taking a gun for a reason.”
The jury was instructed on first and second degree murder;
express and implied malice; accomplice liability; and, pursuant to
CALJIC No. 3.02, murder as the natural and probable
consequence of the target crime of misdemeanor assault (§ 240).
The jury found Delgado and Rodriguez not guilty of first degree
murder, but guilty of second degree murder. It also found true
special allegations a principal had intentionally discharged a
firearm causing death and the murder had been committed for

5
the benefit of a criminal street gang. Each defendant was
sentenced to an aggregate state prison term of 40 years to life:
15 years to life for second degree murder and an additional
consecutive term of 25 years to life pursuant to section 12022.53,
subdivisions (d) and (e)(1).
In affirming both judgments on appeal we rejected, among
other arguments, Delgado’s contentions it was impermissible as a
matter of law to base a murder conviction under the natural and
probable consequences doctrine on a minor target offense such as
misdemeanor assault and, in any event, the evidence was
insufficient to support the finding Lopez’s murder was the
natural and probable consequence of the intended assault. We
also refused to adopt Rodriguez’s argument that individuals who
did not personally use a firearm and were only liable for one of
the offenses enumerated in section 12022.53, subdivision (a),
under the natural and probable consequences doctrine, should
not be considered “principals” for purpose of the firearm
3
enhancement in section 12022.53, subdivision (e)(1). We did not
discuss any other theory of liability for murder in our opinion.
2. Rodriguez’s Petition for Resentencing
Rodriguez, representing himself, petitioned to vacate his
murder conviction pursuant to section 1170.95 on January 7,
2019, six days after the effective date of Senate Bill 1437, which
limited the felony murder rule and eliminated the natural and
probable consequences doctrine as it relates to murder through

3
As we explained, “Because he did not directly aid and abet
Frankie’s murder (that is, murder was not the target crime),
Rodriguez maintains he should not be considered a principal for
purposes of the firearm enhancement under section 12022.53,
subdivision (e)(1).”

6
amendments to sections 188 and 189. In a declaration
supporting the petition Rodriguez stated, in part, “At trial the
jury was instructed on the doctrine of natural and probable
consequences CALJIC 3.02 [citation] attached as Exhibit B.
Further the District Attorney argued that both defendants were
guilty under the natural and probable consequences theory.”
Rodriguez averred he could not be convicted of first or second
degree murder as of January 1, 2019 “due to the enactment of
changes to Penal Code 188.” Rodriguez requested the court
reappoint as his counsel the lawyer who had represented him at
trial.
After reviewing the petition, the court ruled Rodriguez was
entitled to counsel and granted his request for reappointment of
4
counsel who had represented him at trial. The court also
granted the People’s request for an extension of time to file an
informal opposition to the petition.
In its initial opposition the People contended Senate
Bill 1437 was unconstitutional. Counsel for Rodriguez filed a
brief responding to that issue. The People filed a further
opposition arguing the petition should be denied on the merits
based on the trial record. After asserting the testimony of
Lopez’s sister concerning the location of Rodriguez, Delgado and
the unidentified third man supported a finding Rodriguez was
the actual shooter, the People argued, “The record here contains

4
A petition to vacate a murder conviction pursuant to
section 1170.95 is to be filed with the court that sentenced the
petitioner. (§ 1170.95, subd. (b)(1).) Judge Robert M. Martinez,
who had presided at trial and sentenced Rodriguez, retired in
2018. Accordingly, Rodriguez’s petition was transferred to
Judge Mike Camacho.

7
substantial evidence from which the jury could have found
beyond a reasonable doubt that [Rodriguez] knew of and shared
Delgado’s and the unidentified male’s intent to kill Frankie and
acted to further the shooting.”
Rodriguez’s counsel responded, emphasizing that neither
Rodriguez nor Delgado had been charged as the actual shooter
and that the jury found them not guilty of first degree murder,
suggesting the jury did not believe they had gone to Lopez’s
apartment with the intent to commit murder.
The court issued an order to show cause and set a formal
hearing for November 27, 2019.
3. The OSC Hearing and the Court’s Ruling
At the outset of the hearing on its order to show cause,
after stating it had read the parties’ papers and was familiar
with the circumstances leading to the verdicts at Rodriguez’s
trial, the court invited argument “as to whether or not there is a
theory of liability in the record absent additional evidence that
could support the defendant’s liability for second degree murder.”
The court added, “Before I do that, I think, it’s uncontested that
there is no evidence in the record that could link Mr. Rodriguez to
being the actual killer, in other words, the actual shooter. The
evidence is insufficient to support that. . . . The issue is whether
or not Mr. Rodriguez as a non-shooter can still be held criminally
[liable] for the killing of Mr. Frankie Lopez other than on a
theory of natural and probable consequences.”
After hearing from Rodriguez’s counsel, the court made the
following observations, “I think the issue that we are now left to
resolve is whether or not there is another theory of liability other
than natural and probable consequences that could still support
beyond a reasonable doubt, which is the standard, liability for

8
second degree murder. . . . The evidence is pretty much
uncontested that Mr. Rodriguez did take an active part in setting
up that scenario that ultimately resulted in the shooting death. I
think more so than anyone else in the record Mr. Rodriguez had a
motive to do harm to Frankie Lopez. That is supported by
substantial evidence that Frankie Lopez, evidently, harbored a
rival gang member from the Azusa 13 gang by the name of
Anthony Coronado, which certainly Mr. Rodriguez had issues
with . . . .”
Relying on Delgado’s statement to police, the court
explained its understanding of why, given the ongoing dispute
between Rodriguez and Coronado, Lopez and not Coronado was
selected as the target. Then, after acknowledging there was an
unidentified third person who participated at the outset of the
episode, the court stated, “There is absolutely no evidence in the
record to support an argument that that person was involved in
any way in the killing of Frankie Lopez. But we do know there
were at least two people involved, Mr. Rodriguez being one of
them.” The court then reasoned one of the two men was the
shooter; the second was a direct aider and abettor who had
shouted, “Get him, Dog,” proving express malice.
During the prosecutor’s comments, which included the
argument Rodriguez could be found guilty of first degree murder
under a lying-in-wait theory and implied malice murder, the
court stated, “I know that the law requires, for purposes of this
hearing, [the court] to review the record and determine by way of
evidence whether or not there is evidence in the record beyond a
reasonable doubt that could support a murder conviction
regardless of whether or not it was first or second degree.” After
both counsel addressed whether the People were entitled to

9
assert theories of liability that had not been argued at trial, the
court restated its view, “The defendant is entitled to be
resentenced if, in fact, there is no other evidence in the record
that could support any alternative theory regardless of whether
or not the People relied upon that during the trial.”
Reiterating the significance of the “Get him, Dog” comment,
which proved express malice by the speaker, the court said its
tentative finding, subject to final comments by counsel, was “to
find there is sufficient evidence in the record to support an
express malice murder theory for purposes of the standard of
proof required that would implicate Mr. Rodriguez in the killing
of Mr. Frankie Lopez.” Rodriguez’s counsel attempted to
persuade the court to change its view, arguing, if there was
insufficient evidence Rodriguez was the shooter and insufficient
evidence to know what role the unidentified third person played,
then the evidence was insufficient to prove it was Rodriguez who
said, “Get him, Dog.”
The court was unconvinced: “Although it was mentioned in
the trial evidence about the third person, there is zero evidence
that I have seen that implicated this third person, the person
unidentified, as doing anything other than simply being present
at the time the shots were fired, which means the evidence points
to Mr. Rodriguez being at least at the very minimum a direct
aider and abettor because those words can be attributed to him if
he is the non-shooter. If there [are] only two people involved,
they were both equally liable for the express malice murder of
Frankie Lopez. So that’s my finding. I think it’s supported in the
record. I think the analysis is appropriate. It is not overreaching
in any respect. So the [petition] for resentencing under 1170.95
is respectfully denied.”

10
 The minute order from the hearing on November 27, 2019
stated the petition was denied. No written explanation for the
ruling was provided.
DISCUSSION
1. Senate Bill 1437 and the Section 1170.95 Petition
Procedure
Senate Bill 1437, effective January 1, 2019, significantly
modified the law relating to accomplice liability for murder. In
its uncodified findings and declarations the Legislature stated,
“It is necessary to amend the felony murder rule and the natural
and probable consequences doctrine, as it relates to murder, to
ensure that murder liability is not imposed on a person who is
not the actual killer, did not act with the intent to kill, or was not
a major participant in the underlying felony who acted with
reckless indifference to human life.” (Stats. 2018, ch. 1015, § 1,
subd. (f).) The Legislature also declared, “Except as stated in
subdivision (e) of Section 189 of the Penal Code [relating to first
degree felony murder], a conviction for murder requires that a
person act with malice aforethought. A person’s culpability for
murder must be premised upon that person’s own actions and
subjective mens rea.” (Id., § 1, subd. (g).)
The Legislature accomplished its goal by adding
subdivision (a)(3) to section 188, and subdivision (e) to
section 189. New section 188, subdivision (a)(3), effectively
eliminates the natural and probable consequences doctrine as a
basis for finding a defendant guilty of murder by providing,
“Except as stated in subdivision (e) of Section 189, in order to be
convicted of murder, a principal in a crime shall act with malice
aforethought. Malice shall not be imputed to a person based
solely on his or her participation in a crime.” New section 189,

11
subdivision (e), limits the felony murder exception to the malice
requirement, permitting a murder conviction for a death that
occurred during the commission of certain serious felonies only
when other specified circumstances relating to the defendant’s
5
individual culpability have been proved.
Senate Bill 1437 also authorized, through new
section 1170.95, an individual convicted of felony murder or
murder under a natural and probable consequences theory to
petition the sentencing court to vacate the conviction and be
resentenced on any remaining counts if he or she could not have
been convicted of murder because of Senate Bill 1437’s changes to
the definition of the crime. The petition must include a
declaration by the petitioner that he or she is eligible for relief
under section 1170.95, the superior court case number and year
of the petitioner’s conviction and a statement whether the
petitioner requests the appointment of counsel. (§ 1170.95,
subd. (b)(1); see People v. Verdugo (2020) 44 Cal.App.5th 320,
326-327, review granted Mar. 18, 2020, S260493.)

5
Section 189, subdivision (e), provides with respect to a
participant in the perpetration or attempted perpetration of a
felony listed in section 189, subdivision (a), in which a death
occurs—that is, as to those crimes that provide the basis for the
charge of first degree felony murder—that an individual is liable
for murder “only if one of the following is proven: [¶] (1) The
person was the actual killer. [¶] (2) The person was not the actual
killer, but, with the intent to kill, aided, abetted, counseled,
commanded, induced, solicited, requested, or assisted the actual
killer in the commission of murder in the first degree. [¶] (3) The
person was a major participant in the underlying felony and
acted with reckless indifference to human life, as described in
subdivision (d) of Section 190.2.”

12
 If the petition contains all required information,
section 1170.95, subdivision (c), prescribes a two-step process for
the court to determine if an order to show cause should issue:
“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. If the petitioner has
requested counsel, the court shall appoint counsel to represent
the petitioner. The prosecutor shall file and serve a response . . .
and the petitioner may file and serve a reply . . . . If the
petitioner makes a prima facie showing that he or she is entitled
to relief, the court shall issue an order to show cause.” (See
People v. Verdugo, supra, 44 Cal.App.5th at p. 327.)
Once the order to show cause issues, the court must hold a
hearing to determine whether to vacate the murder conviction
and to recall the sentence and resentence the petitioner on any
remaining counts. (§ 1170.95, subd. (d)(1); see People v. Verdugo,
supra, 44 Cal.App.5th at p. 327.) At the hearing the prosecution
has the burden of proving beyond a reasonable doubt that the
petitioner is ineligible for resentencing. (§ 1170.95, subd. (d)(3).)
The prosecutor and petitioner may rely on the record of
conviction or offer new or additional evidence to meet their
respective burdens. (See People v. Tarkington (2020)
49 Cal.App.5th 892, 898-899, review granted Aug. 12, 2020,
S263219; People v. Drayton (2020) 47 Cal.App.5th 965, 981;
People v. Lewis (2020) 43 Cal.App.5th 1128, 1136, review granted
Mar. 18, 2020, S260598.)
2. Standard of Review
As discussed, section 1170.95, subdivision (d)(3), provides,
“At the hearing to determine whether the petitioner is entitled to
relief, the burden of proof shall be on the prosecution to prove

13
beyond a reasonable doubt, that the petitioner is ineligible for
resentencing.” The proper interpretation of that language—that
is, the correct standard to be applied by the superior court in
evaluating eligibility for resentencing—is a question of law that
we determine de novo. (People v. Prunty (2015) 62 Cal.4th 59, 71;
Greene v. Marin County Flood Control & Water Conservation
Dist. (2010) 49 Cal.4th 277, 287; People v. Drayton, supra,
47 Cal.App.5th at p. 981.)
As appellate courts generally do, we apply a deferential
standard of review in determining whether the evidence supports
any of the superior court’s factual findings. (Lopez, supra,
56 Cal.App.5th at p. 953 [substantial evidence standard of review
applies to findings of fact in postjudgment orders including those
made pursuant to section 1170.95]; see People v. Prunty, supra,
62 Cal.4th at p. 71; People v. Drayton, supra, 47 Cal.App.5th at
p. 981; see also People v. Sledge (2017) 7 Cal.App.5th 1089, 1095-
1096 [“‘Where an appeal involves the interpretation of a
statute . . . , the issue on appeal is a legal one, which we review
de novo. [Citation.] Where the trial court applies disputed facts
to such a statute, we review the factual findings for substantial
evidence’”]; People v. Salmorin (2016) 1 Cal.App.5th 738, 743
[appellate court reviews factual findings by a superior court in a
Proposition 47 proceeding for substantial evidence]; see generally
People v. Penunuri (2018) 5 Cal.5th 126, 142 [describing
deferential standard of review of the sufficiency of the evidence to
support a criminal conviction]; People v. Rodriguez (1999)
20 Cal.4th 1, 11 [same].)

14
 3. The Prosecution’s Burden of Proof: Criminal Liability for
Murder Beyond a Reasonable Doubt
Section 1170.95, subdivision (d)(3), does not clearly identify
the standard to be applied by the court to determine if the
petitioner is ineligible for resentencing. Rodriguez suggests
three different standards are possible. First, does the evidence
establish beyond a reasonable doubt the petitioner was convicted
of murder under a still-valid theory—the harmless error standard
applicable when a trial court instructed a jury on two theories of
guilt, one of which was legally correct and one legally incorrect,
as articulated, for example, in People v. Chiu (2014) 59 Cal.4th
155, 167, and People v. Guiton (1993) 4 Cal.4th 1116, 1128-1129.
Second, do the record of conviction and any additional evidence
introduced at the hearing establish beyond a reasonable doubt
the petitioner is guilty of murder under a still-valid theory—an
independent factfinder or trial standard. Third, would the
evidence permit a reasonable jury to find the petitioner guilty of
murder with the requisite mental state beyond a reasonable
doubt—essentially substantial evidence standard for appellate
review (the appellate standard).
Rodriguez urges us to hold either the Chiu/Guiton harmless
error standard or the independent factfinder/trial standard must
be applied to determine ineligibility for resentencing under
section 1170.95. We agree with the holding of the court of appeal
in Lopez, supra, 56 Cal.App.5th 936 that the independent
factfinder/trial standard, requiring a finding by the superior
court beyond a reasonable doubt that the petitioner was
criminally liable for murder under the amendments enacted by

15
Senate Bill 1437, should govern determinations of ineligibility at
6
a subdivision (d)(3) hearing.
a. General principles of statutory interpretation
“Our primary task ‘in interpreting a statute is to determine
the Legislature’s intent, giving effect to the law’s purpose.
[Citation.] We consider first the words of a statute, as the most
reliable indicator of legislative intent.’” (California Building
Industry Assn. v. State Water Resources Control Bd. (2018)
4 Cal.5th 1032, 1041.) “‘“We interpret relevant terms in light of
their ordinary meaning, while also taking account of any related
provisions and the overall structure of the statutory scheme to
determine what interpretation best advances the Legislature’s
underlying purpose.”’ [Citation.] ‘If we find the statutory
language ambiguous or subject to more than one interpretation,
we may look to extrinsic aids, including legislative history or
purpose to inform our views.’” (In re A.N. (2020) 9 Cal.5th 343,
351-352; accord, Los Angeles County Bd. of Supervisors v.
Superior Court (2016) 2 Cal.5th 282, 293.)

6
In his respondent’s brief the Attorney General also agreed
the superior court was required to find beyond a reasonable doubt
that the petitioner was criminally liable for murder under the
current Penal Code provisions. However, at oral argument the
Attorney General withdrew that position and asserted a
substantial evidence standard applied, albeit one that differed
somewhat from that standard as recently articulated in People v.
Duke (2020) 55 Cal.App.5th 113.

16
 b. The Chiu/Guiton harmless error standard is
inconsistent with the statutory language
Rodriguez’s argument in favor of the Chiu/Guiton harmless
error standard is contrary to three related aspects of
section 1170.95. First, the harmless error line of cases requires
courts to inquire whether “there is a basis in the record to find
that the verdict was based on a valid ground.” (People v. Chiu,
supra, 59 Cal.4th p. 167.) That backward looking evaluation is
inconsistent with section 1170.95, subdivisions (a)(3) and (d)(3)’s
explicit direction to the court to determine if the petitioner could
now be convicted of murder under sections 188 and 189 as
amended, not whether he or she was, in fact, convicted of murder
under a still-valid theory. Second, subdivision (d)(3) permits both
parties to present new or additional evidence at the hearing after
issuance of the order to show cause. If the superior court’s
ineligibility ruling may be based on evidence not heard by the
original trier of fact, the Legislature cannot have intended the
court simply to evaluate the grounds on which the original
verdict was reached. Finally, section 1170.95 is available to
defendants convicted of murder following a plea in lieu of a trial.
Given the limited record in many of those cases, it would be
impossible to assess whether a still-valid ground for a murder
conviction existed, let alone to determine beyond a reasonable
doubt that the valid ground was the basis for the plea. Yet
section 1170.95 contemplates the same procedure to determine
ineligibility in plea cases as in cases in which the murder
conviction was reached at trial.

17
 c. The appellate review standard is inconsistent with
the Legislature’s intent in permitting retroactive relief
for individuals convicted under now-invalid theories
of murder
We similarly reject the third approach, the appellate review
standard, which asks whether a reasonable jury could find the
petitioner could be convicted of murder under a still-valid theory,
and which Division One of this court adopted in People v. Duke
(2020) 55 Cal.App.5th 113, 123-124 (Duke).
At the threshold, because section 1170.95,
subdivision (d)(3), does not clearly identify the standard to be
applied, we look to the Legislature’s stated purpose in enacting
Senate Bill 1437 to guide our interpretation of the statutory
language. (See People v. Gonzalez (2017) 2 Cal.5th 1138, 1141
[“‘“‘[a]s in any case involving statutory interpretation, our
fundamental task . . . is to determine the Legislature’s intent so
as to effectuate the law’s purpose”’”’]; Goodman v. Lozano (2010)
47 Cal.4th 1327, 1332 [“[i]n interpreting a statute, our primary
goal is to determine and give effect to the underlying purpose of
the law”].)
As discussed, concerned about the disparity between
individual culpability and punishment then existing under the
natural and probable consequences doctrine and the felony
murder rule, the Legislature with Senate Bill 1437 reformed
aider and abettor liability in homicide cases to more equitably
sentence both past and future offenders in relation to their own
actions and subjective mentes reae. (See Stats. 2018, ch. 1015,
7
§ 1, subds. (f), (g).) That legislative goal is best effectuated by

7
In September 2017, a year prior to enactment of Senate
Bill 1437, the Legislature adopted Senate Concurrent Resolution

18
resentencing individuals convicted of first or second degree
murder under the natural and probable consequences doctrine or
the felony murder rule if the evidence, whether from the record of
conviction alone or with new and additional evidence introduced
at the subdivision (d)(3) hearing, fails to establish beyond a
reasonable doubt they, in fact, acted during the crime with the
now-required mental state. To deny resentencing simply because
a jury could have found that they may have acted with express
malice would frustrate the legislation’s purpose.
To be sure, section 1170.95, subdivision (a)(3), provides, as
a condition to petitioning for resentencing relief, that “[t]he

No. 48 (2017-2018 Reg. Sess.) resolution chapter 175 (SCR 48),
recognizing the need for statutory changes to more equitably
sentence offenders in relation to their involvement in the
criminal activity: “[R]eform is needed in California to limit
convictions and subsequent sentencing in both felony murder
cases and aider and abettor matters prosecuted under [the]
‘natural and probable consequences’ doctrine so that the law of
California fairly addresses the culpability of the individual and
assists in the reduction of prison overcrowding, which partially
results from lengthy sentences which are not commensurate with
the culpability of the defendant.” SCR 48 also noted, “It can be
cruel and unusual punishment to not assess individual liability
for nonperpetrators of the fatal act or in nonhomicide matters the
criminal charge resulting in prosecution and impute culpability
for another’s bad act, thereby imposing lengthy sentences that
are disproportionate to the conduct in the underlying case.”
Following 28 “whereas” provisions, the Senate, with the Assembly
concurring, resolved “[t]hat the Legislature recognizes the need
for statutory changes to more equitably sentence offenders in
accordance with their involvement in the crime.” (See generally
People v. Lopez (2019) 38 Cal.App.5th 1087, 1098, review granted
Nov. 13, 2019, S258175.)

19
petitioner could not be convicted of first or second degree murder
because of changes to Section 188 or 189 made effective
January 1, 2019.” (See also § 1170.95, subd. (b)(1)(A) [petitioner
must declare that “he or she is eligible for relief under this
section based on the requirements of subdivision (a)”].) If the
primary requirement for eligibility for resentencing is that the
petitioner could not be convicted of murder, the Duke court
reasoned, then to prove ineligibility the prosecution need only
establish that the petitioner “could still have been convicted of
murder under the new law.” (Duke, supra, 55 Cal.App.5th at
p. 123.)
This overly literal analysis is not compelled by the statute’s
language and is directly at odds with the Legislature’s stated
purpose in enacting Senate Bill 1437. Use of a conditional verb
in section 1170.95, subdivision (a)(3), is a normal grammatical
construct to express the hypothetical situation an inmate such as
Rodriguez faces when filing the petition—what would happen
today if he or she were tried under the new provisions of the
Penal Code? (See, e.g., GrammarlyBlog, Conditional Verbs
[as of
December 7, 2020], archived at https://perma.cc/RF67-BD3V>
[“[c]onditional verbs are us ed to create conditional sentences,
which express hypothetical or unlikely situations”].) But once a
prima facie case of eligibility has been made and an order to show
cause issued, the prosecution’s burden is neither conditional nor
hypothetical. Under subdivision (d)(3) the prosecutor must prove
“the petitioner is ineligible for resentencing,” not that he or she
might be or could be ineligible. (See Horwich v. Superior Court
(1999) 21 Cal.4th 272, 280 [interpretation of a statute should
“follow[ ] the grammatical structure and logic of the

20
statutory language taken as a whole”]; People v. Valenti (2016)
243 Cal.App.4th 1140, 1170 [“‘[w]ords and phrases in a statute
are construed according to the rules of grammar and common
usage’”].)
Moreover, the prosecutor must prove ineligibility beyond a
reasonable doubt, which is not only the standard of proof
considered by the independent factfinder in a criminal trial but
also, as the Supreme Court held in People v. Frierson (2017)
4 Cal.5th 225 less than two months before the introduction of
Senate Bill 1437, the burden a prosecutor must carry in proving
ineligibility for resentencing under Proposition 36, the
8
Three Strikes Reform Act of 2012. It is unlikely the Legislature

8
Under Proposition 36 an inmate who has been sentenced as
a third strike offender for a nonserious, nonviolent felony may
petition for resentencing as a second strike offender. (§ 1170.126,
subds. (a), (b).) Upon receiving such a petition the trial court
“shall determine whether the petitioner satisfies the criteria”
identified in the statute. (§ 1170.126, subd. (f).) If the criteria
are met, section 1170.126, subdivision (f), continues, “[T]he
petitioner shall be resentenced . . . unless the court, in its
discretion, determines that resentencing the petitioner would
pose an unreasonable risk of danger to public safety.” In People
v. Frierson, supra, 4 Cal.5th 225 the Supreme Court held, once
the inmate makes an initial showing of eligibility for
resentencing, “[T]he prosecution bears the burden of proving that
one of the ineligibility criteria applies. . . . Placing the burden of
proving ineligibility on the prosecution is consistent with the
recall statute’s statement that it should apply to one ‘whose
sentence under this act would not have been an indeterminate
life sentence.’” (Id. at p. 234.) The Court additionally held proof
of the petitioner’s ineligibility beyond a reasonable doubt was
required (id. at p. 230), and then noted, “[T]he trial court’s
discretion to deny resentencing to a defendant who poses an

21
would have selected that language if it had intended only an
appellate-type review of the sufficiency of the evidence of the
petitioner’s guilt on a still-viable theory, rather than requiring
the prosecutor to actually establish the petitioner’s guilt under
the newly amended statutes.
The improbability of such a legislative intent is
underscored by subdivision (d)(3)’s provision authorizing both
parties to introduce new or additional evidence at the hearing to
determine whether the petitioner is ineligible for resentencing.
How is the superior court to evaluate that additional evidence if
not as an independent factfinder? It would be pointless for the
court’s role in this situation simply to be deciding whether a jury
could credit a new witness’s testimony and thus could conclude
9
the petitioner had acted with express malice.
Indeed, the understanding it would be the prosecution’s
burden to prove to an independent factfinder that the petitioner
was guilty of murder was a primary concern of the California
District Attorneys Association (Association), which opposed
Senate Bill 1437. As set forth in identical language in the Senate

unreasonable danger to the public acts as a safeguard in cases
where the record does not establish ineligibility criteria beyond a
reasonable doubt.” (Id. at p. 240.)
9
Unless it is physically impossible or inherently improbable,
the testimony of any witness may be believed and is sufficient to
support a conviction. (E.g., People v. Ghobrial (2018) 5 Cal.5th
250, 281; People v. Young (2005) 34 Cal.4th 1149, 1181.) As such,
any new witness for the People would likely justify a finding that
the petitioner could be liable for murder under the amended
statutes. In this context, moreover, it is unclear what additional
meaning there would be to require the court to find beyond a
reasonable doubt that a jury could have believed the witness.

22
Committee on Public Safety’s initial report on the legislation and
again in the Assembly Committee on Public Safety’s report on an
amended version of the bill, the Association complained, “[B]y
placing the burden on the prosecution to prove beyond a
reasonable doubt that petitioners do not qualify for resentencing,
this bill will require the litigation of facts previously not litigated
in the original case, particularly in cases that resolved through a
plea. It is unclear from this bill whether the determination of
those facts will be conducted by the resentencing judge or will
necessitate a jury—which has significant procedural and
constitutional implications as well as significant costs.” (Sen.
Com. on Public Safety, Rep. on Sen. Bill No. 1437 (2017-2018
Reg. Sess.) Feb. 16, 2018, p. 10; Assem. Com. on Public Safety,
Rep. on Sen. Bill No. 1437 (2017-2018 Reg. Sess.) as amended
May 25, 2018, p. 8.)
The Association’s fear a jury might be required was
unfounded. (See People v. Anthony (2019) 32 Cal.App.5th 1102,
1156-1157 [no Sixth Amendment right to a jury trial in
proceedings under section 1170.95].) Its interpretation of the
nature of the factfinding hearing to determine ineligibility,
however, was correct. (See Couzens, Accomplice Liability for
Murder (SB 1437) (April 2019), at p. 36 [“[i]t is the burden of the
prosecutor to show, beyond a reasonable doubt, that the
petitioner is guilty under the law effective January 1, 2019”].)
The court of appeal in Lopez, supra, 56 Cal.App.5th 936
reached the same conclusion as we do, using a slightly different
analysis. The question, the Lopez court posited, is “how confident
must the trial court be in the state’s ability to prove the
petitioner’s guilt of murder under current law in order to find
petitioner ineligible for relief. Must the prosecutor persuade the

23
trial court that the state theoretically has the requisite ability
because there is substantial evidence from which a reasonable
trier of fact could convict? Or must the prosecutor persuade the
trial court beyond a reasonable doubt that the state has the
requisite ability by proving beyond a reasonable doubt each
element of murder? In short, what is the standard of proof?” (Id.
at p. 949.) Lopez held the statute itself provides the answer:
“Section 1170.95, subdivision (d)(3) expressly states that the
beyond a reasonable doubt standard of proof applies.” (Ibid.)
Accordingly, Lopez continued, “we construe the statute as
requiring the prosecutor to prove beyond a reasonable doubt each
element of first or second degree murder under current law in
order to establish ineligibility based on the third condition.”
(Ibid.)
In sum, we agree with Rodriguez and the Lopez court of
appeal that it is the court’s responsibility to act as independent
factfinder and determine whether the evidence establishes a
petitioner would be guilty of murder under amended sections 188
and 189 and is thus ineligible for resentencing under
section 1170.95, subdivision (d)(3).
4. The Superior Court Applied an Incorrect Standard in
Finding Rodriguez Ineligible for Resentencing
Rather than find beyond a reasonable doubt that Rodriguez
had directly aided and abetted the murder of Lopez, the superior
court here determined only that “there is sufficient evidence in
the record to support an express malice murder theory.”
Accordingly, the matter must be remanded for a new hearing for

24
the court to evaluate, using the proper standard of proof, whether
10
Rodriguez is ineligible for resentencing.
Although in his brief the Attorney General agreed the
prosecution’s burden was to prove beyond a reasonable doubt
that Rodriguez was criminally liable for murder under the
amendments enacted by Senate Bill 1437, citing two statements
from the November 27, 2019 hearing, he argued the superior
court correctly applied this standard of proof. We do not share
the Attorney General’s generous interpretation of the court’s
language.
As the Attorney General points out, the court observed that
the issue to be decided was whether a theory of liability existed
other than natural and probable consequences “that could still
support beyond a reasonable doubt” a conviction for second
degree murder, and subsequently stated it was required to review
the record to determine “whether or not there is evidence in the

10
Rodriguez argues on appeal the superior court’s
consideration of Delgado’s explanation during a police interview
of the motive for shooting Lopez, admitted at trial only as to
Delgado, violated his Sixth Amendment right to confrontation
and, in addition, was inadmissible hearsay. He also contends, if
the issue was forfeited because his counsel did not object to the
evidence at the subdivision (d)(3) hearing, as the Attorney
General argues, he received constitutionally ineffective
assistance of counsel. The Attorney General responds that there
is no constitutional right to confrontation at a hearing held
pursuant to section 1170.95, the evidence was otherwise
admissible, and any error in considering Delgado’s statement was
harmless. Because Rodriguez did not object and the superior
court therefore did not have an opportunity to rule on this
evidentiary issue, it should be addressed in the first instance on
remand.

25
record beyond a reasonable doubt that could support a murder
conviction.” But both of those formulations of the standard used
the phrase “could support”—the appellate standard of review—
not “does support beyond a reasonable doubt” or equivalent
language, which would indicate the court had actually found the
evidence established Rodriguez was guilty of murder as a direct
aider and abettor. None of the court’s other comments suggests it
understood its obligation to make a finding of guilt, not simply a
determination that a trier of fact, applying the beyond a
reasonable doubt standard, could make such a finding. To the
contrary, the court’s determination that Rodriguez’s motive to
commit murder was “supported by substantial evidence” and its
statement toward the end of the hearing that Rodriguez “is
entitled to be resentenced if, in fact, there is no other evidence in
the record that could support any alternative theory,” as well as
its ultimate ruling, reveal the court’s application of the incorrect
standard.
Because the superior court applied an incorrect standard of
proof, its order denying Rodriguez’s petition for resentencing
must be reversed and the matter remanded for a new hearing.
Whether the record establishes Rodriguez’s ineligibility for
resentencing beyond a reasonable doubt is to be decided in the
first instance by the superior court acting as factfinder and using
the proper standard of proof.

26
 DISPOSITION
The order denying Rodriguez’s petition for resentencing is
reversed, and the matter remanded for a new evidentiary hearing
applying the correct standard of proof as set forth in this opinion.

PERLUSS, P. J.

We concur:

SEGAL, J.

*
DILLON, J.

*
Judge of the Los Angeles County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.

27