Filed 8/23/21 P. v. Rodriguez CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D078274
Plaintiff and Respondent,
v. (Super. Ct. No. SCS219199)
ERIC RODRIGUEZ,
Defendant and Appellant.
APPEAL from an order of the Superior Court San Diego County,
Timothy R. Walsh, Judge. Reversed and remanded with directions.
John Schuck, under appointment by the Court of Appeal, for Defendant
and Appellant.
Rob Bonta, Attorney General, Julie L. Garland, Assistant Attorney
General, Michael Pulos, Seth Friedman, and Joy Utomi, Deputy Attorneys
General, for Plaintiff and Respondent.
In 2010, a jury convicted Eric Rodriguez of conspiracy to commit
assault and second degree murder (Pen. Code,1 §§ 182, subd. (a), 187,
1 All further statutory references are to the Penal code.
subd. (a)). The jury found true an alleged gang enhancement. Rodriguez was
sentenced to an indeterminate term of 15 years to life, plus 10 years for the
gang enhancement.
Rodriguez appealed and this court affirmed the conviction but ordered
the trial court to strike the 10-year term for the enhancement. (People v.
Garcia et al. (May 3, 2012, D058280) [nonpub. opn.].)
In 2019, Rodriguez filed a pro. per. petition for resentencing under
section 1170.95. The trial court appointed counsel, received briefing,
reviewed the record of conviction, and then denied the petition by written
order.
Rodriguez filed a timely notice of appeal.
Rodriguez contends the trial court engaged in impermissible factfinding
in evaluating his petition at the prima facie stage of the review process. The
Attorney General agrees with Rodriguez, concedes the trial court erred, and
asks the court to reverse the trial court’s order and remand for an evidentiary
hearing. After a review of the record, we have concluded the parties have
correctly analyzed this appeal. We will accept the Attorney General’s
concession and reverse the trial court’s order and remand with directions.2
DISCUSSION
The trial court found Rodriguez not eligible for relief under
section 1170.95 and explained its reasons in a written order. The court
stated:
“The court has reviewed the petition for resentencing filed
pursuant to newly enacted Penal Code section 1170.95, the
return, and the reply, and finds that Petitioner has not
made a prima facie showing that he or she is entitled to
relief for the following reasons:
2 The facts of the offenses as found in the trial are fully set forth in our
prior opinion. We do not find it necessary to repeat them here.
2
“Petitioner 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 first degree murder,’ as described in
subdivision (d) of Section 190.2.[ ] (§189, subd. (e).)
“The Court has reviewed the trial court record of conviction
and the trial transcript in this case. At trial there was
direct evidence presented by the prosecution from
witnesses including Monica Cobian and Rosamelia Cordova
that Petitioner shared Garcia’s intent to kill the victim Ms.
Granados and aided and abetted her murder by holding the
victim Granados with gloved hands while Garcia—who was
also wearing gloves—fatally stabbed her. Holding the
victim while she was being stabbed to death by Garcia
demonstrates that Petitioner shared Garcia’s criminal
intent to silence Granados by killing her.
“The changes to sections 188 and 189 did not alter the law
regarding the criminal liability of direct aider and abettors
of murder because such persons necessarily ‘know and
share the murderous intent of the actual perpetrator.’
Here the evidence presented to the jury was that
Petitioner, by directly aiding and abetting Garcia, shared
Garcia’s murderous intent. Petitioner has not made a
prima facie showing that Petitioner was not a direct aider
and abettor and could not be convicted under amended
sections 188 and 189.
“Accordingly, the Petition is denied.
“[¶] . . . [¶]
“IT IS SO ORDERED.”
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. If the petitioner has
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requested counsel, the court shall appoint counsel to represent the petitioner.
The prosecutor shall file and serve a response within 60 days of service of the
petition and the petitioner may file and serve a reply within 30 days after the
prosecutor response is served. These deadlines shall be extended for good
cause. 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.”
The contention of the parties here is that the record of conviction does
not, by itself, support a finding the petitioner was not eligible as a matter of
law. Instead, they contend one has to examine the facts of the offense and
the trial, weigh evidence and make credibility decisions, all of which cannot
be done at the prima facie stage of the review process. We agree that
factfinding is necessary to discern the petitioner’s role in the crime and
whether he was convicted on a now impermissible theory.
A trial judge may deny a resentencing petition at the prima facie stage
if the record of conviction, without factfinding, establishes the petitioner is
not eligible under the statute. (People v. Verdugo (2020) 44 Cal.App.5th 320,
329-330, review granted Mar. 18, 2020, S260493; People v. Drayton (2020) 47
Cal.App.5th 965, 972, 980-982.)
It is apparent from the trial court’s written order, that the judge
weighed and considered the evidence at the trial in reaching the conclusion
Rodriguez was a direct aider and abettor who acted with the intent to kill.
The fact of the conviction and this court’s affirmance of the conviction based
upon a substantial evidence analysis do not, without further examination and
weighing of evidence, permit the court to find the petitioner’s exact role and
the theory of liability of conviction. It is not disputed that Rodriguez was not
the actual killer. The jury instructed on one possible theory of liability based
on the doctrine of natural and probable consequences. In short, determining
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the petitioner’s eligibility for relief under section 1170.95 requires the
issuance of an order to show cause (OSC) and an evidentiary hearing as
mandated by the statute.
DISPOSITION
The order denying Rodriguez’s petition for resentencing under
section 1170.95 is reversed. The case is remanded with directions to issue an
OSC and conduct an appropriate evidentiary hearing. We express no opinion
about the proper outcome of such hearing.
HUFFMAN, Acting P. J.
WE CONCUR:
HALLER, J.
AARON, J.
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