Filed 10/19/21 P. v. Rodriguez CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B303427
(Super. Ct. No. 2008012605)
Plaintiff and Respondent, (Ventura County)
v.
PETER RODRIGUEZ,
Defendant and Appellant.
Peter Rodriguez (petitioner) was convicted, by jury, of
the second degree murder of John Orrantia (Pen. Code, §§ 187,
subd. (a), 189)1 and of assault with a deadly weapon and by
means of force likely to produce great bodily injury on Orlando
Orrantia. (§ 245, subd. (a)(1).) We affirmed the convictions in an
unpublished opinion. (People v. Rodriguez (Feb. 16, 2011,
B215469 (Rodriguez).) In 2019, Rodriguez filed a petition for
resentencing under section 1170.95. The trial court appointed
All statutory references are to the Penal Code unless
1
otherwise stated.
counsel for petitioner and ordered briefing. After reviewing the
parties’ briefs, the trial court concluded petitioner had not made a
prima facie case for relief and denied the petition. We conclude
the trial court erred in denying the petition before issuing an
order to show cause and holding an evidentiary hearing.
Accordingly, we reverse and remand the case for further
proceedings.
Facts
In 2009, petitioner was convicted, by jury, of the
second degree murder of John Orrantia and of assault with a
deadly weapon on Orlando Orrantia. The jury found petitioner
not guilty of street terrorism (§ 186.22, subd. (a)), and found not
true an allegation that the offenses were committed for the
benefit of a street gang. (§ 186.22, subd. (b)(1).) Petitioner’s co-
defendant, Gustavo Tapia, was found not guilty of John’s murder
and of street terrorism, but was convicted of assault with a
deadly weapon on Orlando. The jury found not true the
allegations that Tapia personally used a deadly and dangerous
weapon (§ 12022, subd. (b)(1)), that he personally inflicted great
bodily injury on Orlando (§ 12022.7, subd. (a)), and that he acted
to benefit a street gang. (§ 186.22, subd. (b)(1).) We affirmed
petitioner’s convictions in an unpublished opinion. (Rodriguez,
supra, B215469.)
The Crime. We summarize the statement of facts
from our prior opinion on petitioner’s direct appeal: In January
2006, petitioner and Gustavo Tapia attended a large party in
Ventura, arriving in a black Toyota Camry that was registered to
Tapia’s parents. John Orrantia and his brother Orlando
attended the same party. John’s ex-girlfriend, Megan Walpole,
drove John to the party in her black Toyota Camry. The two
2
Camrys were parked near each other. As John Orrantia was
leaving the party, he opened the passenger side door of Tapia’s
car, apparently thinking it was Walpole’s. Walpole corrected
him. John closed the car door and started to walk away.
Two men suddenly appeared on either side of John
Orrantia. One was wearing a Dodgers sweatshirt; the other was
taller and wearing a black jacket. One of the men hit John,
knocking him to the ground. Then both men were hitting and
kicking John. Orlando ran up. He pushed the man in the
sweatshirt away and traded punches with him. The other man
kept hitting John. Orlando heard John say he had been stabbed.
The other two men stopped fighting and ran down the street, in
the direction of a 7-11 store.
Witnesses, including Orlando and Walpole, could not
identify which attacker held the knife that stabbed John
Orrantia. Walpole described the incident as a “joint attack.”
There was also testimony that Orlando was fighting with Tapia
and that petitioner was hitting John.
Security video from the 7-11 store showed petitioner,
wearing a dark jacket, and Tapia, wearing a Dodgers sweatshirt,
inside the store about 30 minutes after the fight ended. A black
Toyota Camry registered to Tapia’s parents was parked on the
street near the sight of the stabbing.
Bystanders drove both John Orrantia and Orlando to
the hospital. Orlando had been stabbed on his wrist and side.
He received stitches for some wounds and underwent successful
surgery the next day. John died at the hospital from a stab
wound to the heart.
The Trial. The trial court instructed the jury on
three theories of murder liability: aiding and abetting a murder
3
(CALCRIM No. 401), aiding and abetting an assault with a
deadly weapon, the natural and probable consequence of which
was death (CALCRIM No. 403), and murder with malice
aforethought. The jury was also instructed to determine whether
co-defendant Tapia had personally used a deadly weapon and
whether he personally inflicted great bodily injury. It was not
asked to make those findings with respect to petitioner.
In her closing argument, the prosecutor argued the
jury did not need to decide which defendant stabbed the victim.
Instead, she informed them, it was sufficient to find beyond a
reasonable doubt that petitioner and Tapia aided and abetted
each other, either in committing murder or in committing an
assault with a deadly weapon the natural and probable
consequence of which was the victim’s death.
The jury convicted petitioner of second degree murder
and assault with a deadly weapon but, because it was not
instructed to do so, made no finding that he personally used a
deadly weapon or inflicted great bodily injury. It found co-
defendant Tapia not guilty of murder and found that he did not
personally use a deadly weapon or inflict great bodily injury.
The Petition. Petitioner filed the form petition for
resentencing under section 1170.95. In it, he stated under
penalty of perjury 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 . . . .”
Petitioner also requested counsel be appointed to represent him.
The trial court appointed counsel for petitioner and
ordered briefing. The People’s opposition argued that petitioner
failed to make a prima facie showing he was eligible for
4
resentencing because the evidence at trial showed that petitioner
acted with actual malice, whether he was the direct perpetrator
of the stabbing or an aider and abettor. Although the People
acknowledged that petitioner’s jury was instructed on the natural
and probable consequences theory, they argued the jury must
have rejected that theory because it found Tapia was not guilty of
murder. According to the People, Tapia’s acquittal meant the
jury rejected the aiding and abetting theory and found instead
that petitioner acted alone in stabbing John Orrantia.
Petitioner contended he stated a prima facie case for
resentencing because he established that the jury could have
relied on a natural and probable consequences theory to convict
him. The jury was instructed on that theory of murder, with
assault with a deadly weapon as the target felony. It was not,
however, instructed to find whether petitioner personally used a
deadly weapon. In addition, the prosecutor’s closing argument
acknowledged there was no direct evidence showing whether
petitioner or Tapia had the knife. She urged the jury to convict
petitioner of murder because he participated in an assault and
the murder was a foreseeable consequence of that assault.
Petitioner argued the trial court should issue an order to show
cause because it was not possible, based on the record of
conviction, to determine whether he was convicted as the direct
perpetrator or as an aider and abettor.
The trial court held a hearing to determine whether
petitioner had established a prima facie case for resentencing. It
informed the parties that it had reviewed their briefs but did not
indicate whether it reviewed any other documents, such as the
information filed against petitioner or the jury instructions from
his trial. The trial court denied the petition because it found
5
petitioner did not make a prima facie showing he was eligible for
relief. The trial court noted, that both Tapia and the surviving
victim, Orlando Orrantia, identified petitioner as the person who
attacked John Orrantia, the murder victim. Security camera
footage from the 7-11 showed petitioner and Tapia wearing
clothes like those described by witnesses to the fight. “So I think
there’s ample evidence, not only that he was the stabber, he was
the aider and abettor. I don’t think a prima facie showing has
been made.”
Discussion
In 2018, the Legislature enacted Senate Bill No. 1437
(Reg. Sess. 2017-2018), which amended section 188 to provide
that “[e]xcept as stated in subdivision (e) of Section 189
[governing felony murder], 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.” (Stats. 2018, ch. 1015, § 2, subd. (a)(3).)
This provision “bars a conviction for second degree murder under
the natural and probable consequences theory.” (People v. Gentile
(2020) 10 Cal.5th 830, 839.)2
2 Under the natural and probable consequences doctrine,
“‘“[a] person who knowingly aids and abets criminal conduct is
guilty of not only the intended crime [target offense] but also of
any other crime the perpetrator actually commits [nontarget
offense] that is a natural and probable consequence of the
intended crime.”’” (People v. Chiu (2014) 59 Cal.4th 155, 161.)
Liability under this theory is vicarious in nature. It is not
“‘premised upon the intention of the aider and abettor to commit
the nontarget offense because the nontarget offense was not
intended at all. It imposes vicarious liability [on the aider and
abettor] for any offense committed by the direct perpetrator that
6
Senate Bill No. 1437 (2017-2018 Reg. Sess.), also
enacted section 1170.95 which creates a procedure for people who
were previously “convicted of felony murder or murder under a
natural and probable consequences theory” to petition to have
their “murder conviction vacated and to be resentenced on any
remaining counts . . . .” (§ 1170.95, subd. (a).) A petitioner is
eligible for this relief if the following conditions are met: (1) the
murder charges filed against the petitioner allowed prosecution
under a theory of felony murder or murder under the natural and
probable consequences doctrine; (2) the petitioner was “convicted
of first degree or second degree murder following a trial or
accepted a plea offer in lieu of a trial at which the petitioner
could be convicted for first degree or second degree murder”; and
(3) the petitioner “could not be convicted of first or second degree
murder because of changes to Section 188 or 189 made effective
January 1, 2019.” (Id., subd. (a)(2) & (3).)
If the petition complies with these requirements, 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.” (§ 1170.95, subd. (c).) “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.” (Ibid.)
As our Supreme Court recently explained in People v.
Lewis (2021) 11 Cal.5th 952 (Lewis), “[T]he prima facie inquiry
under [section 1170.95] subdivision (c) is limited. Like the
analogous prima facie inquiry in habeas corpus proceedings, ‘“the
court takes petitioner’s factual allegations as true and makes a
is a natural and probable consequence of the target offense. . . .’”
(Id. at p. 164.)
7
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.”’ [Citation.]”
(Id. at p. 971.)
The trial court may “look at the record of conviction
after the appointment of counsel to determine whether a
petitioner has made a prima facie case” for relief. (Lewis, supra,
11 Cal.5th at p. 971.) It should not, however, “‘reject the
petitioner’s factual allegations on credibility grounds without
first conducting an evidentiary hearing.’ [Citations.] ‘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.”’” (Ibid.) Similarly, “at this preliminary juncture, a
trial court should not engage in ‘factfinding involving the
weighing of evidence or the exercise of discretion.’ [Citation.]”
(Id. at p. 972.)
Here, the petition was facially sufficient (§ 1170.95,
subd. (a), (b)) and the record of conviction did not demonstrate
ineligibility for relief as a matter of law. A petitioner would be
ineligible for relief as a matter of law where the record
conclusively shows that his or her murder conviction actually
rested on a theory of liability that is unaffected by section
1170.95. (Lewis, supra, 11 Cal.5th at p. 971.) But here,
petitioner’s record of conviction shows that the jury was
instructed on the now-invalid natural and and probable
consequences theory.
It is possible petitioner’s conviction rests on that
theory. In her closing argument, the prosecutor argued the jury
did not need to decide which defendant stabbed the victim.
8
Instead, she informed them, it was sufficient to find beyond a
reasonable doubt that petitioner and Tapia aided and abetted
each other, either in committing murder or in committing an
assault with a deadly weapon the natural and probable
consequence of which was the victim’s death. If the jury relied on
the latter theory, there is a possibility petitioner would be
entitled to relief under section 1170.95.
Respondent contends the record of conviction shows
petitioner is ineligible for relief because co-defendant Tapia was
found not guilty of murder and the jury also found he did not
personally use a deadly weapon. Since only two people were
involved in the assault, respondent contends this result means
the jury necessarily found petitioner was the direct perpetrator,
rejecting both aiding and abetting and the natural and probable
consequences theory of liability.
But this petition is only at the prima facie case stage
of the section 1170.95 procedure. “[A]t this preliminary juncture,
a trial court should not engage in ‘factfinding involving the
weighing of evidence or the exercise of discretion.’ [Citation.]”
(Lewis, supra, 11 Cal.5th at p. 972.) Without engaging in
factfinding or weighing the evidence, it is not possible to conclude
that the jury found petitioner to be the direct perpetrator. The
jury could have found, consistent with the instructions it was
given, that petitioner aided and abetted an assault, the natural
and probable consequence of which was John Orrantia’s death.
The verdict in favor of co-defendant Tapia does not
compel the conclusion that petitioner was found to be the direct
perpetrator. “The law generally accepts inconsistent verdicts as
an occasionally inevitable, if not entirely satisfying, consequence
of a criminal justice system that gives defendants the benefit of a
9
reasonable doubt as to guilt, and juries the power to acquit
whatever the evidence.” (People v. Palmer (2001) 24 Cal.4th 856,
860.) At this preliminary stage of the process, we cannot infer
from Tapia’s acquittal that the jury accepted any given theory of
guilt as to petitioner.
Because petitioner has made a prima facie showing
that he is entitled to relief under section 1170.95, and the record
of conviction does not show him to be ineligible as a matter of
law, the trial court’s summary denial of his petition was error.
(Lewis, supra, 11 Cal.5th at pp. 971-972.) The matter is therefore
remanded to the trial court for issuance of an order to show cause
and an evidentiary hearing in accordance with subdivisions (c)
and (d) of section 1170.95.
DISPOSITION
The order denying the petition for resentencing is
reversed. The matter is remanded with instructions to issue an
order to show cause and hold further proceedings in accordance
with section 1170.95, subdivision (d).
NOT TO BE PUBLISHED.
YEGAN, Acting P. J.
We concur:
PERREN, J.
TANGEMAN, J.
10
Ferdinand Inumerable, Judge
Superior Court County of Ventura
______________________________
Ralph H. Goldsen, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Chalres S. Lee, Christopher G.
Sanchez, Deputy Attorneys General, for Plaintiff and
Respondent.