Filed 10/21/21 P. v. Rodriguez CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 TWO
THE PEOPLE, B309105
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA044680)
v.
CARLOS RODRIGUEZ,
Defendant and Appellant.
APPEAL from an order of the Los Angeles Superior Court,
Hayden Zacky, Judge. Affirmed.
Heather J. Manolakas, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Steven D. Matthews and Roberta L. Davis,
Deputy Attorneys General, for Plaintiff and Respondent.
******
Carlos Rodriguez (defendant) argues that the trial court
erred in denying his petition for resentencing under Penal Code
section 1170.95.1 There was no prejudicial error, so we affirm.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
Just after school let out on a Monday in October 2008,
defendant and two others in an SUV drove up alongside three
pedestrians on the sidewalk. Someone in the SUV asked the
pedestrians, “Where you from?” When one of the pedestrians
answered with the name of a street gang, one of the SUV’s
inhabitants yelled out the name of the rival gang and opened fire
at the three pedestrians. One of them was shot and killed.
(People v. Rodriguez, Mar. 28, 2013, B235978 [nonpub. opn.], at
*2-*3.)
II. Procedural Background
A. Underlying conviction, sentence, and appeal
The People charged defendant and two other inhabitants of
the SUV with (1) the murder of the pedestrian who died (§ 187,
subd. (a)), and (2) two counts of attempted premeditated murder
of the two other pedestrians (§§ 187, subd. (a), 664). The People
further alleged that defendant “personally and intentionally
discharged a firearm” (§ 12022.53), that all three offenses were
“committed for the benefit of, at the direction of, and in
1 All further statutory references are to the Penal Code
unless otherwise indicated.
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association with a criminal street gang” (§ 186.22, subd. (b)(4)),
and that a principal personally and intentionally discharged a
firearm (§ 12022.53, subd. (e)(1)).
On the murder count, the jury was instructed on the
theories that (1) defendant was the actual killer, and (2)
defendant directly aided and abetted the actual killer. The jury
convicted defendant of the first degree murder of the pedestrian
who died as well as the attempted premeditated murders of the
two other pedestrians, and found true the gang enhancement and
the discharge of a firearm by a principal; the jury hung on the
allegation of defendant’s personal discharge of a firearm. The
trial court sentenced defendant to 100 years to life in state
prison, calculated as a sentence of 50 years to life for the murder
(comprised of 25 years to life as the base sentence plus 25 years
for the firearm enhancement), plus two consecutive sentences of
25 years to life for each attempted murder (comprised of a base
sentence of life plus 25 years for the firearm enhancement). On
appeal, we affirmed defendant’s convictions and sentence.
B. Petition for resentencing
In August 2020, defendant filed a form petition to vacate
his first degree murder conviction under section 1170.95.
Without appointing counsel or entertaining further briefing, the
trial court summarily denied defendant’s petition, reasoning that
defendant had “failed to make a prima facie case for relief
pursuant to . . . section 1170.95” because the jury was never
instructed on—and hence his conviction did not rest on— either
of the two theories invalidated by section 1170.95.
Defendant filed this timely appeal.
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DISCUSSION
Defendant argues that the trial court erred in summarily
denying his section 1170.95 petition. Because our consideration
of this argument involves questions of law and the application of
that law to undisputed facts, our review is de novo. (Tsasu LLC
v. U.S Bank Trust, N.A. (2021) 62 Cal.App.5th 704, 715.)
A person is entitled to relief under section 1170.95 if, as
relevant here, (1) “[a] complaint, information, or indictment was
filed against [him] that allowed the prosecution to proceed under
a theory of felony murder or murder under the natural and
probable consequences doctrine,” (2) he “was convicted of . . .
second degree murder,” and (3) he “could not be convicted of . . .
second degree murder because of changes to Section 188 or 189
made effective January 1, 2019.” (§ 1170.95, subd. (a).) In
January 2019, our Legislature amended section 188 to provide
that “in order to be convicted of murder, a principal in a crime
shall act with malice aforethought” and that “[m]alice shall not
be imputed to a person based solely on his . . . participation in a
crime.” (§ 188, subd. (a)(3).) Our Legislature’s purpose was to
ensure that “[a] person’s culpability for murder [is] premised
upon that person’s own actions and subjective mens rea.” (Stats.
2018, ch. 1015, § 1(g).)
As a threshold matter, we conclude that the trial court
erred in summarily denying defendant’s petition. In People v.
Lewis (2021) 11 Cal.5th 952 (Lewis), our Supreme Court held
that if a defendant files a facially compliant petition and requests
the appointment of counsel, the trial court must appoint counsel
and entertain further briefing regardless of whether the record of
conviction unequivocally demonstrates that the defendant is not
entitled to relief. (Id. at p. 964.) Here, defendant’s petition was
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facially compliant and he requested counsel. Thus, Lewis
dictates the conclusion that the trial court erred in summarily
denying defendant’s petition.
However, this finding of error is the first step, not the last.
That is because Lewis went on to hold that an error in summarily
denying a section 1170.95 petition is harmless unless the
defendant can show “‘“it is reasonably probable that if [he or she]
had been afforded assistance of counsel [and briefing] his [or her]
petition would not have been summarily denied without an
evidentiary hearing.”’” (Lewis, supra, 11 Cal.5th at p. 974.)
We conclude that defendant was not prejudiced by the
summary denial in this case because the record forecloses
defendant’s entitlement to relief under section 1170.95 as a
matter of law, such that the appointment of counsel and further
briefing would not have mattered. In assessing whether a
defendant seeking relief under section 1170.95 has made out a
prima facie case warranting an evidentiary hearing, a trial court
must take the petition’s factual allegations as true and ask
“‘whether the petitioner would be entitled to relief if [those]
allegations were proved.’” (Lewis, supra, 11 Cal.5th at p. 971.)
“‘However, if the record, including the court’s own documents
[from the record of conviction] “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.)
Defendant has not made the requisite prima facie showing
of entitlement to relief under section 1170.95. That is because
the jury instructions establish that the defendant’s murder
conviction rests on the theory either that defendant was the
actual shooter or that defendant aided and abetted the actual
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shooter in the murder. Either way, the jury had to find that
defendant personally acted with malice. Because the jury was
never instructed on a natural and probable consequences theory
or felony-murder theory, his murder conviction could not rest on
either theory and he is not entitled to relief under section 1170.95
as a matter of law. (E.g., People v. Smith (2020) 49 Cal.App.5th
85, 92, fn. 5, review granted July 22, 2020, S262835.)
Defendant offers two reasons why he was prejudiced by the
trial court’s summary denial of his section 1170.95 petition.
First, he argues the natural and probable consequences
theory was before his jury. Specifically, he notes that the jury
instruction on direct aiding and abetting (CALCRIM No. 401)
states that a “person may . . . be found guilty of other crimes that
occurred during the commission” of a crime he “aid[ed] and
abet[ted]” “[u]nder some specific circumstances,” and argues that
the prosecutor “seemed to” argue the natural and probable
consequences theory in closing by stating that “when you join a
gang . . . when you commit a crime, even if you don’t want to, the
other one is required to back him up, no matter what.” We reject
this argument, as it rests on a misreading of the record. It is
undisputed that the jury was not given the standard instruction
for natural and probable consequences liability (CALCRIM No.
403), and that the jury was accordingly not ever instructed on
which lesser offense the defendant had to aid and abet before the
natural and probable consequences liability attached. Further,
neither the snippet of the standard direct aiding and abetting
instruction defendant cites nor the snippet of closing argument
put the natural and probable consequences theory before the
jury: The snippet of the jury instruction was superfluous because
the jury was never instructed that there was a “first crime” or a
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second crime, and the snippet of the closing argument was
directed toward why defendant harbored the intent to kill
necessary to find him guilty as a direct aider and abettor.
Neither injected a wholly new and separate theory into the trial.
Second, defendant makes a number of arguments directed
at the validity of his attempted premeditated murder convictions,
but these are irrelevant because he did not challenge them in his
section 1170.95 petition. They are therefore outside the scope of
this appeal.
DISPOSITION
We affirm the order denying relief under section 1170.95.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________, J.
HOFFSTADT
We concur:
_________________________, P. J.
LUI
_________________________, J.
ASHMANN-GERST
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