Filed 2/23/22 P. v. Rodriguez CA2/7
Opinion following transfer from Supreme Court
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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 with directions.
Eric R. Larson, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Rob Bonta, Attorneys General, Lance E.
Winters, Chief Assistant Attorney General, Susan Sullivan
Pithey, Senior Assistant Attorney General, Steven D. Matthews,
Michael Johnsen, Supervising Deputy Attorneys General,
Michael J. Wise, Charles S. Lee and Amanda V. Lopez, 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.].)
Rodriguez petitioned to vacate his murder conviction and
1
for resentencing under Penal Code section 1170.95, attaching 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.”
We reversed the order denying Rodriguez’s petition,
holding the superior court had applied an improper standard of
proof at the evidentiary hearing. Following the Attorney
General’s petition for review, the Supreme Court transferred the
1
Statutory references are to this code.
2
case to us with directions to reconsider our opinion in light of
amendments to section 1170.95 by Senate Bill No. 775 (2021-
2022 Reg. Sess.) (Stats. 2021, ch. 551, § 2) (Senate Bill 775),
effective January 1, 2022.
Rodriguez again argues the case should be remanded for a
new evidentiary hearing at which the prosecution is required to
prove beyond a reasonable doubt he is guilty of murder under
current law and do so according to the rules of evidence
mandated by Senate Bill 775. For his part, the Attorney General
recognizes the superior court “may have” applied the wrong
standard of proof but argues any error was harmless. Because
the superior court not only applied the incorrect substantial
evidence standard of proof but also relied on inadmissible
hearsay evidence to conclude the evidence supported a finding
Rodriguez had acted with express malice as a direct aider and
abettor of Lopez’s murder, it is reasonably probable a result more
favorable to Rodriguez would have been reached in the absence of
2
those errors. (See People v. Watson (1956) 46 Cal.2d 818, 836.)
Accordingly, we reverse the order denying Rodriguez’s petition
and remand for a new evidentiary hearing on Rodriguez’s
eligibility for relief.
2
The right to a postconviction proceeding for possible
resentencing pursuant to section 1170.95 is purely a creation of
state law. We evaluate nonstructural state law error under the
harmlessness standard set forth in Watson, supra, 46 Cal.2d 818.
(People v. Gonzalez (2018) 5 Cal.5th 186, 195.) That standard
requires us to evaluate whether the petitioner has demonstrated
that it is “‘“reasonably probable that a result more favorable to
the appealing party would have been reached in the absence of
the error.”’” (Ibid.)
3
FACTUAL AND PROCEDURAL BACKGROUND
1. Rodriguez’s Conviction for Murder
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
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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
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 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.
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.
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
3
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 have agreed accurately
summarized the evidence at trial.
4
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
Lopez’s 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.
In a tape recorded police interview with Delgado introduced
only as to Delgado at the joint trial, Delgado admitted he had
gone to Lopez’s door on December 25, 2004, but claimed he had
walked back to the car and was opening the car door when the
shooting occurred. He insisted he 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
5
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
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
6
4
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, the Evidentiary Hearing and the
Court’s Ruling Denying the Petition
Rodriguez, representing himself, petitioned to vacate his
murder conviction pursuant to section 1170.95 shortly after the
effective date of Senate Bill No. 1437 (2017-2018 Reg. Sess.)
(Stats. 2018, ch. 1015) (Senate Bill 1437). 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 appointing counsel and considering briefing from the
prosecutor and Rodriguez’s counsel, the superior court issued an
order to show cause and set a formal hearing pursuant to
section 1170.95, subdivision (c). At the outset of the hearing 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
4
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).”
7
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
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
8
them.” The court then reasoned one of the two men was the
shooter, the second a direct aider and abettor who had shouted,
“Get him, Dog,” supporting the finding they each had acted with
express malice.
Following further argument the court reiterated the
significance to it of the “Get him, Dog” comment and stated its
tentative finding, subject to any final argument 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, asserting, 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.”
9
3. Rodriguez’s Appeal, the Attorney General’s Petition for
Review and the Supreme Court’s Transfer Order
In an opinion filed in December 2020 we reversed the
denial of Rodriguez’s section 1170.95 petition and remanded the
matter for a new evidentiary hearing. We held section 1170.95,
subdivision (d)(3), as enacted by Senate Bill 1437, required the
superior court, after issuing an order to show cause, to act as an
independent fact finder and to determine whether the prosecutor
had proved beyond a reasonable doubt the petitioner could be
convicted of murder under current law.
We noted in our opinion that on appeal Rodriguez also
argued the superior court’s consideration of Delgado’s
explanation of the rationale for assaulting Lopez, admitted at
trial only as to Delgado, was inadmissible hearsay and should not
have been considered by the superior court. Because Rodriguez
had not objected and the superior court therefore did not have an
opportunity to rule on that evidentiary issue, we held it should be
addressed in the first instance on remand.
The Attorney General petitioned the Supreme Court for
review in Rodriguez’s case, noting a conflict in the courts of
appeal as to the standard of proof to be applied at an evidentiary
hearing under section 1170.95, subdivision (d)(3). Before the
Supreme Court decided the issue, the Legislature enacted Senate
Bill 775, which amended section 1170.95, subdivision (d)(3), to
require use of the beyond-a-reasonable-doubt standard and
expressly stated a finding there is substantial evidence to support
a conviction for murder is insufficient to prove the petitioner is
ineligible for resentencing.
On December 22, 2021 the Supreme Court transferred
Rodriguez’s case to this court with directions to vacate our prior
10
decision and to reconsider the cause in light of Senate Bill 775
(S266652).
DISCUSSION
1. The Superior Court Applied an Improper Standard of
Proof
Senate Bill 1437 substantially modified the law relating to
accomplice liability for murder, eliminating the natural and
probable consequences doctrine as a basis for finding a defendant
guilty of murder (People v. Gentile (2020) 10 Cal.5th 830, 842-
843) and significantly narrowing the felony-murder exception to
the malice requirement for murder (§§ 188, subd. (a)(3), 189,
5
subd. (e); see People v. Lewis (2021) 11 Cal.5th 952, 957). It also
authorized, through new section 1170.95, an individual convicted
of felony murder or murder based on the natural and probable
consequences doctrine 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. (See Lewis, at
p. 957; Gentile, at p. 843.)
When, as here, the petitioner has carried the burden of
making the requisite prima facie showing he or she falls within
the provisions of section 1170.95 and is entitled to relief, the
court must issue an order to show cause and hold an evidentiary
hearing to determine whether to vacate the murder conviction
and resentence the petitioner on any remaining counts.
(§ 1170.95, subd. (d)(1).)
5
As amended by Senate Bill 775, the ameliorative provisions
of Senate Bill 1437 now also apply to attempted murder and
voluntary manslaughter.
11
As originally enacted section 1170.95, subdivision (d)(3),
provided, “At the hearing to determine whether the petitioner is
entitled to relief, the burden of proof shall be on the prosecution
to prove, beyond a reasonable doubt, that the petitioner is
ineligible for resentencing.” Senate Bill 775 amended
section 1170.95, subdivision (d)(3), to provide, “At the hearing to
determine whether the petitioner is entitled to relief, the burden
of proof shall be on the prosecution to prove, beyond a reasonable
doubt, that the petitioner is guilty of murder or attempted
murder under California law as amended by the changes to
Section 188 or 189 made effective January 1, 2019. . . . A finding
that there is substantial evidence to support a conviction for
murder, attempted murder, or manslaughter is insufficient to
prove, beyond a reasonable doubt, that the petitioner is ineligible
for resentencing.”
In his supplemental brief filed after the Supreme Court’s
transfer order, Rodriguez again argues the superior court used an
improper substantial evidence standard of proof at the
evidentiary hearing. In light of Senate Bill 775, the Attorney
General now agrees the superior court must act as an
independent fact finder at the section 1170.95, subdivision (d)(3),
evidentiary hearing and determine whether the petitioner is in
fact liable under the law of murder as amended by Senate
Bill 1437 beyond a reasonable doubt, but he does not concede the
6
court here used the incorrect standard. We agree with
Rodriguez; the superior court erred.
6
Although reluctant to agree the superior court erred, the
Attorney General does acknowledge, “[a]s this Court held in its
earlier opinion in the case, the record indicates the trial court
incorrectly applied a substantial evidence test below.”
12
As discussed, during the hearing the court observed 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
record beyond a reasonable doubt that could support a murder
conviction.” 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. Similarly, 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.
2. The Superior Court’s Error Was Not Harmless
The Attorney General argues, even if the superior court
incorrectly applied a substantial evidence standard, any error
7
was harmless. To be sure, as the Attorney General emphasizes,
7
Responding to the Attorney General’s supplemental brief,
Rodriguez contends the harmless error argument violated
California Rules of Court, rule 8.200(b)(2), which limits
supplemental briefs after transfer from the Supreme Court to
matters arising after the previous court of appeal decision (here,
enactment of Senate Bill 775) absent leave of court. Rodriguez
also notes in the Attorney General’s original briefing he did not
13
the superior court found Rodriguez “most certainly” played an
active role in luring Lopez out of the apartment. It was
presumably on that basis that the jury found Rodriguez was an
aider and abettor to the target offense of misdemeanor assault,
which led to his conviction of murder, the nontarget offense,
under the now legally untenable natural and probable
consequences doctrine. Rodriguez’s role at the apartment’s
threshold, however, does little to justify the conclusion it was he
who cried out, “Get him, Dog”—what the superior court
determined was the “key piece of evidence”—rather than the
unidentified third person who initially knocked on the apartment
door and asked for Lopez. (As Rodriguez explains in his
supplemental brief, with quotations from the trial record, the
prosecutor at trial proceeded on the theory there were at least
three people involved in Lopez’s shooting.) Contrary to the
Attorney General’s analysis, the superior court’s finding that
Rodriguez “could easily be labeled as the aider and abettor” falls
far short of a finding beyond a reasonable doubt that Rodriguez
was an aider and abettor who acted with express malice.
In addition, in denying Rodriguez’s petition the superior
court emphasized Rodriguez’s motive for revenge, relying in large
argue any error in applying an improper standard of proof was
harmless. While both of Rodriguez’s observations are correct,
whether or not raised by a party, we are prohibited by the
California Constitution from reversing a judgment unless, “after
an examination of the entire cause, including the evidence, the
court shall be of the opinion that the error complained of has
resulted in a miscarriage of justice.” (Cal. Const., art. VI, § 13;
see People v. Doolin (2009) 45 Cal.4th 390, 420 [“‘[a]ll trial court
error under California law is governed by article VI, section 13 of
the California Constitution’”].)
14
part on Delgado’s explanation during his police interrogation why
Lopez, who was not a gang member, had been targeted for an
assault. That evidence, admitted at the joint trial only as to
Delgado, is not properly considered in determining whether
Rodriguez could be convicted of murder under current law.
(See § 1170.95, subd. (d)(3) [“[t]he admission of evidence at the
hearing shall be governed by the Evidence Code, except that the
court may consider evidence previously admitted at any prior
hearing or trial that is admissible under current law”].) In sum,
if the superior court had applied the proper standard of proof and
governing rules of evidence, it is reasonably probable a result
more favorable to Rodriguez would have been reached.
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 and evidentiary rules in
the current version of section 1170.95, subdivision (d)(3).
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.
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