People v. Rodriguez CA4/2

Filed 10/27/22 P. v. Rodriguez CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E077794

v. (Super. Ct. No. FSB053198)

ALFRED RAY RODRIGUEZ, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino County. Bryan Foster,

Judge. Affirmed.

Ronda G. Norris, under appointment by the Court of Appeal, for Defendant and

Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney

General, Charles C. Ragland , Assistant Attorney General, Charles C. Ragland, Arlene A.

Sevidal, Lynne G. McGinnis and James H. Flaherty III, Deputy Attorneys General, for

Plaintiff and Respondent.

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 I.

INTRODUCTION

Defendant and appellant Alfred Ray Rodriguez (Rodriguez) appeals the trial

court’s summary denial of his petition for resentencing pursuant to Penal Code section
1
1170.95. He argues the trial court erred in denying his petition without issuing an order

to show cause and holding an evidentiary hearing because it engaged in impermissible

fact-finding. The record of conviction shows Rodriguez is ineligible for resentencing as a

matter of law. We therefore affirm the trial court’s order.

II.
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FACTUAL AND PROCEDURAL BACKGROUND

Tina Lopez testified that she had spent the night of November 17, 2005, with Jerry

Ramirez (Jerry), her boyfriend, at a motel. Tina telephoned her father, Benjamin, and

asked for a ride. Edward Vincent Hernandez (Vinny) and Rodriguez, her cousins, picked

her and Jerry up. No one seemed tense or angry.

1
That section has since been renumbered as Penal Code section 1172.6. (Stats.
2022, ch. 58, § 10.) However, because that change was nonsubstantive and the parties
cite to Penal Code section 1170.95, we will cite to Penal Code section 1170.95 for ease of
reference. All further statutory references are to the Penal Code.
2
The factual background is taken from this court’s nonpublished opinion in
defendant Rodriguez and codefendant Benjamin Hernandez’s (Benjamin) prior appeal,
case No. E046636, which is part of the record on appeal in this case. (People v.
Rodriguez et al. (Sept. 28, 2010, E046636) [nonpub. opn.] (Rodriguez I).)

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 The group went to the home of Tina’s aunt, where Jerry’s brother, Eric Ramirez,

lived. Eric testified he had been keeping a .22-caliber semiautomatic and a .22-caliber

revolver, as well as a .25-caliber clip, for Jerry. Eric retrieved the guns and gave them to

Jerry; Jerry unloaded the guns and gave them and the clip to Vinny, who owned one of

the guns. Tina’s aunt testified that about a year earlier, there had been problems between

Vinny and Jerry.

The group then proceeded to a house on East Pumalo Street (the Pumalo house)

where other extended family members lived. Tina’s mother, Stella Lopez; Tina’s aunt

and uncle, Ruth and Edward Hernandez, Sr. (Edward); and Benjamin were all at the

Pumalo house. Tina bickered with Benjamin while Rodriguez, Vinny, and Jerry were

outside. Tina heard “loudness” in the backyard, and Benjamin went outside. Benjamin

told Tina to stay in the house and told Stella to keep her there.

Curtis Hawkins, who lived behind the Pumalo house, heard a commotion.

Through his bathroom window, he saw several men, including all four defendants,

surrounding Jerry on the ground near the carport. Jerry was trying to escape but the

others were blocking him. Hawkins heard Benjamin say, “You been fucking with my

family. I’m going to kill you.” Benjamin hit Jerry with a pointed edge shovel about 20

times in the head and torso while Jerry cried and pleaded for him to stop. Hawkins saw a

pool of blood form around Jerry’s head, and he heard Benjamin say, “Hurry up. Get my

gun.” Hawkins also heard someone say to get blankets. Vinny and Rodriguez rolled

Jerry’s motionless body up in blankets. Vinny backed a car up the driveway into the

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carport, and Vinny and Rodriguez loaded Jerry into the trunk and drove off. Hawkins

then saw Edward put some dirt over the blood and hose down the driveway and a car in

the carport. A few minutes later, Hawkins heard Benjamin say to his daughter and

another woman, “The same thing may happen to you.” Hawkins did not contact the

police because he feared for his own safety.

Another next-door neighbor, Vivian Jackson, heard screams. Jackson looked
3
through the chain-link fence to see Vinny beat a man on the ground with a shovel at least

five times, while three or four other men beat, stomped, and kicked the victim. She could

see blood on the ground. She heard the man she identified as Vinny say, “I told you not

to play with me,” and she heard the victim screaming “no.” Jackson then walked away.

Fifteen or 20 minutes later, she saw Edward hosing down what looked like blood from

the carport area.

Alberta Hechtl, a security guard at a credit union adjacent to the Pumalo house,

heard yelling, and although her view was partially obstructed, she saw an object like a

shovel being driven up and down while a man screamed. She heard a woman yelling

“leave him alone,” and a man reply, “Get in the house.”

3
Although Jackson testified that the man with the shovel was Vinny, she had
identified a photograph of Benjamin as the man who had used the shovel.

4
 Tina told a detective and testified at the preliminary hearing that Benjamin came

back inside and yelled to Vinny and Rodriguez to “[g]et him out of here” or to “[g]et rid

of him.” She then saw Vinny and Rodriguez push Jerry into the car, and she saw Vinny

driving the car away.

Deputy Mark Addy of the San Bernardino County Sheriff’s Department responded

to a report of a domestic disturbance at the Pumalo house. He observed that Benjamin

had what appeared to be fresh blood on his T-shirt and a fresh laceration above his eye.

The deputy also saw someone washing a car in the carport.

Jerry’s body was discovered in a ravine in Waterman Canyon on November 20,

2005. He had suffered numerous blunt and sharp force injuries, including defensive

wounds on his arms, but the cause of death was seven close-range gunshot wounds to the

head. Some of the blunt-force injuries on his back and buttocks area were consistent with

kicking. The seven bullets were all .25-caliber and could only have been fired from a

.25-caliber weapon.

Neither a gun nor the shovel was ever found.
4
The jury found Rodriguez guilty of second degree murder. (§ 187, subd. (a).)

The trial court sentenced Rodriguez to 15 years to life in prison.

4
The jury also found Benjamin guilty of second degree murder. (§ 187, subd.
(a).) The jury further found that Benjamin had used a deadly weapon, a shovel, in the
commission of the crime (§ 12022, subd. (b)(1)).

5
 Rodriguez subsequently appealed, arguing the evidence was insufficient to show
5
he aided and abetted a codefendant in killing the victim. We rejected Rodriguez’s

contentions and affirmed the judgment, concluding that the evidence overwhelmingly

supported the jury’s determination that Rodriguez was guilty of second degree murder.

(See Rodriguez I, supra, E046636.)

On November 4, 2019, Rodriguez filed a second petition for resentencing under

Senate Bill No. 1437 and section 1170.95, asking the court to vacate his murder
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conviction and to resentence him. In the petition, Rodriguez declared that (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 1st or 2nd degree murder

pursuant to the felony murder rule or the natural and probable consequences doctrine”;

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Rodriguez, Benjamin, and codefendants Vinny and Edward were all charged
with first degree murder and conspiracy to commit murder with various weapon use
allegations. Vinny’s trial was severed from that of the others. The jury was unable to
reach a verdict on the murder charge as to Edward and a mistrial was declared as to him.

Vinny and Edward were subsequently tried together. Vinny was found guilty of
first degree murder and conspiracy to commit murder (§§ 187, subd. (a), 182, subd.
(a)(1)), and the jury found true firearm use allegations as to him under section 12022.53,
subdivisions (b), (c), and (d). The jury was again unable to reach a verdict as to the
murder charge against Edward, and another mistrial was declared. Edward thereafter
entered a plea of guilty to acting as an accessory to a felony (§ 32), and the murder
charge against him was dismissed.
6
Rodriguez’s first petition was stricken as unconstitutional.

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and (3) he “could not now be convicted of 1st or 2nd degree murder because of changes

made to Penal Code § § 188 and 189, effective January 1, 2019.”

The People filed an informal response on December 23, 2019, requesting the trial

court take judicial notice of Rodriguez’s record of conviction, including the instructions

provided to the jury. The People argued that the petition should be denied because

Rodriguez was not eligible for relief under section 1170.95 and that the jury instructions

demonstrated Rodriguez’s murder conviction “was not based upon felony murder or

natural and probable consequences[.]”

Counsel was appointed for Rodriguez, and a hearing on the second petition was

held on August 6, 2021. After hearing argument, the trial court found Rodriguez had not
7
made a prima facie showing entitling him to relief and denied the petition. The court

noted Rodriguez’s conviction had not been premised on the felony murder rule and

concluded that there was “no question in everyone’s mind they meant to kill the

individual and they were all participants in the activity.” Defendant timely appealed.

III.

DISCUSSION

Rodriguez contends the trial court erred in summarily denying his “facially

sufficient” petition for resentencing without issuing an order to show cause and

conducting an evidentiary hearing because the court engaged in impermissible fact-

7
The trial court incorrectly stated, “I’m going to strike the petition,” rather than
stating “deny” the petition.

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finding. He believes that although his jury was not instructed on a felony murder theory

or under the natural and probable consequences doctrine, under the instructions given,

Rodriguez could have been convicted on an imputed malice theory to prove the second

degree murder conviction. We conclude that the trial court did not err in denying the

petition after finding Rodriguez is not eligible for relief under section 1170.95.

Effective January 1, 2019, the Legislature passed Senate Bill No. 1437 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.’” (People v.

Gentile (2020) 10 Cal.5th 830, 842 (Gentile); see Stats. 2018, ch. 1015, § 1, subd. (f).)

The criminal liability of direct aiders and abettors did not change under Senate Bill No.

1437. (People v. Offley (2020) 48 Cal.App.5th 588, 595-596.)

Senate Bill No. 1437 eliminated the natural and probable consequences doctrine as

a basis for finding a defendant guilty of murder and significantly limited the scope of the

felony-murder rule. (People v. Lewis (2021) 11 Cal.5th 952, 957 (Lewis); Gentile, supra,

10 Cal.5th at pp. 842-843, 847-848.) As relevant here, under the natural and probable

consequences doctrine, a person who knowingly aided and abetted a crime, the natural

and probable consequence of which was murder, could be convicted of not only the target

crime but also of the resulting murder, irrespective of whether he or she harbored malice

aforethought. (Gentile, supra, at pp. 843-845; People v. Offley, supra, 48 Cal.App.5th at

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p. 595.) However, Senate Bill No. 1437 amended section 188 to provide that “[e]xcept as

stated in subdivision (e) of [s]ection 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.” (§ 188, subd. (a)(3); Stats. 2018, ch.

1015, § 2.) “Senate Bill No. 1437 changed the circumstances under which a person could

be convicted of murder without a showing of malice, but it did not exclude from liability

persons convicted of murder for acting with implied malice.” (People v. Soto (2020) 51

Cal.App.5th 1043, 1057 (Soto), abrogated on another ground by Lewis, supra, 11 Cal.5th

at p. 967.)

Senate Bill No. 1437 also “added section 1170.95 to provide a procedure for those

convicted of felony murder or murder under the natural and probable consequences

doctrine to seek relief.” (Gentile, supra, 10 Cal.5th at p. 843; see Lewis, supra, 11

Cal.5th at p. 959.) Pursuant to section 1170.95, an offender must file a petition in the

sentencing court declaring that: “(1) A complaint, information, or indictment was filed

against the petitioner that allowed the prosecution to proceed under a theory of felony

murder or murder under the natural and probable consequences doctrine . . . [;] [¶] (2)

The petitioner was convicted of murder, attempted murder, or manslaughter following a

trial or accepted a plea offer in lieu of a trial at which the petitioner could have been

convicted of murder or attempted murder [;] [¶] [and] (3) The petitioner could not

presently be convicted of murder or attempted murder because of changes to [s]ection

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188 or 189 made effective January 1, 2019.” (§ 1170.95, subds. (a)(1)-(3); see § 1170.95

subd. (b)(1)(A).)

The trial court then determines whether the petition is facially sufficient under

section 1170.95, subdivision (b). (Lewis, supra, 11 Cal.5th at p. 960.) If the section

1170.95 petition contains all the required information, including a declaration by the

petitioner that he or she was convicted of murder and could not now be convicted of

murder because of changes to section 188 or 189 (§ 1170.95, subd. (b)(1)(A)), the court

then must appoint counsel to represent the petitioner upon his or her request pursuant to

section 1170.95, subdivision (c). (Lewis, supra, at pp. 957, 959-960, 966.) Further, upon

the filing of a facially sufficient petition, the court must direct the prosecutor to file a

response to the petition and permit the petitioner to file a reply, and the court must

determine whether the petitioner has made a prima facie showing that he or she is entitled

to relief. (See § 1170.95, subd. (c); Lewis, supra, at pp. 964, 966.)

In determining whether the petitioner has made a prima facie showing, “‘“the

court takes petitioner’s factual allegations as true and makes a 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.”’ [Citations.] ‘[A] court

should not reject the petitioner’s factual allegations on credibility grounds without first

conducting an evidentiary hearing.’ [Citations.]” (Lewis, supra, 11 Cal.5th at p. 971.)

“In reviewing any part of the record of conviction at this preliminary juncture, a trial

court should not engage in ‘factfinding involving the weighing of evidence or the

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exercise of discretion.’” (Id. at p. 972.) “[T]he trial court should not decide unresolved

factual issues that involve credibility determinations or weighing of evidence. Rather, it

should decide such issues only after issuing an order to show cause and holding an

evidentiary hearing.” (People v. Duchine (2021) 60 Cal.App.5th 798, 811-812, fn.

omitted.)

“Nevertheless, the court may appropriately deny a petition at the prima facie stage

if the petitioner is ineligible for relief as a matter of law.” (People v. Harden (2022) 76

Cal.App.5th 262, 270 (Harden).) “‘“[I]f 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,’”’ thereby

deeming him or her ineligible. (Lewis, supra, 11 Cal.5th at p. 971.) For example, if the

record shows that the jury was not instructed on either the natural and probable

consequences or felony-murder doctrines, then the petitioner is ineligible for relief as a

matter of law. [Citation.] A finding of ineligibility at the prima facie stage may also be

based on a legal holding from a prior appellate opinion arising from the conviction.

[Citation.]” (People v. Harden, supra, at p. 270, citing People v. Daniel (2020) 57

Cal.App.5th 666, 677 & Lewis, supra, at p. 972.)

“Appellate opinions . . . are generally considered to be part of the record of

conviction.” (Lewis, supra, 11 Cal.5th at p. 972.) “[T]here is no categorical bar to

consulting the record of conviction at the prima facie stage.” (Id. at p. 972, fn. 6.) “In

sum, the parties can, and should, use the record of conviction to aid the trial court in

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reliably assessing whether a petitioner has made a prima facie case for relief under

[section 1170.95,] subdivision (c).” (Id. at p. 972, fn. omitted.) Furthermore, the court

may rely on jury instructions, which are part of the record of conviction, to make the

prima facie determination because the instructions “given at a petitioner’s trial may

provide ‘readily ascertainable facts from the record’ that refute the petitioner’s showing,

and reliance on them to make the eligibility or entitlement determinations may not

amount to ‘factfinding involving the weighing of evidence or the exercise of discretion.’”

(Soto, supra, 51 Cal.App.5th at p. 1055.)

In October 2021, Senate Bill No. 775 was enacted and amended section 1170.95,

effective on January 1, 2022. (2020-2021 Reg. Sess.; Stats. 2021, ch. 551, § 1.) As a

result of the amendments, section 1170.95 clarified that “person convicted of felony

murder or murder under the natural and probable consequences doctrine or other theory

under which malice is imputed to a person based solely on that person’s participation in

a crime, attempted murder under the natural and probable consequences doctrine, or

manslaughter,” may file a petition to have that conviction vacated under certain

circumstances. (§ 1170.95, subd. (a), italics added.)

If the petitioner makes a prima facie showing under section 1170.95, subdivision

(c), the court must issue an order to show cause and 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).) If a hearing is held, “the

burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the

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petitioner is guilty of murder or attempted murder under California law as amended by

the changes to [s]ection 188 or 189 made effective January 1, 2019.” (§ 1170.95, subd.

(d)(3).) The prosecutor and the petitioner may offer new or additional evidence to meet

their respective burdens at the hearing stage. The admission of evidence at the hearing is

governed by the Evidence Code. However, the court also “may consider evidence

previously admitted at any prior hearing or trial that is admissible under current law,

including witness testimony, stipulated evidence, and matters judicially noticed,” as well

as the “procedural history of the case recited in any prior appellate opinion.” (§ 1170.95,

subd. (d)(3).) Hearsay evidence that was admitted in a preliminary hearing pursuant to

subdivision (b) of section 872 is inadmissible at the evidentiary hearing, unless made

admissible by another exception to the hearsay rule. (§ 1170.95, subd. (d)(3).)

The prima facie determination under section 1170.95 is a question of law, and the

court may deny a petition at the prima facie stage if the petitioner is ineligible for

resentencing as a matter of law. (Lewis, supra, 11 Cal.5th at p. 966.) “We independently

review a trial court’s determination on whether a petitioner has made a prima facie

showing. [Citation.]” (Harden, supra, 76 Cal.App.5th at p. 270.)

In this case, the jury was not instructed on felony murder and the natural and

probable consequences doctrine, or any other theory of liability that would have

permitted the jury to impute malice to Rodriguez. Rather the instructions were limited to

direct aiding and abetting, express and implied malice, and premeditation and

deliberation. Specifically, as pertinent here, the jury was instructed pursuant to

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CALCRIM No. 400 on general aiding and abetting principles as follows: “A person may

be guilty of a crime in two ways. One, he or she may have directly committed the crime.

I will call that person the perpetrator. Two, he or she may have aided and abetted a

perpetrator who directly committed the crime. A person is equally guilty of the crime

whether he or she committed it personally or aided and abetted the perpetrator who

committed it.” The jury was also given CALCRIM No. 401, the direct aiding and

abetting instruction, which provided in pertinent part: “To prove that a defendant is

guilty of a crime based on aiding and abetting that crime, the People must prove that: [¶]

1. The perpetrator committed the crime; [¶] 2. The defendant knew that the perpetrator

intended to commit the crime; [¶] 3. Before or during the commission of the crime, the

defendant intended to aid and abet the perpetrator in committing the crime; [¶] AND [¶]

4. The defendant’s words or conduct did in fact aid and abet the perpetrator’s commission

of the crime. [¶] Someone aids and abets a crime if he or she knows of the perpetrator’s

unlawful purpose and he or she specifically intends to, and does in fact, aid, facilitate,

promote, encourage, or instigate the perpetrator’s commission of that crime.” Notably,

the trial court did not give either CALCRIM No. 402 [Natural and Probable

Consequences Doctrine (Target and Non-Target Offenses Charged)] or CALCRIM No.

403 [Natural and Probable Consequences (Only Non-Target Offenses Charged)], both of

which would have allowed the jury to convict Rodriguez if jurors found that the murder

was the natural and probable consequences of another target crime. At trial, the

prosecution argued two theories of murder liability, namely that Rodriguez (and his

14
codefendants) committed murder as either direct perpetrators or direct aiders and

abettors.

The instruction on aiding and abetting in particular required that the aider and

abettor “know[] of the perpetrator’s unlawful purpose” and “specifically intend[] to, and

[did] in fact, aid, facilitate, promote, encourage, or instigate the perpetrator’s commission

of that crime.” The jury was further instructed that, if it found a defendant guilty of

murder, then it had to determine whether the murder was of the first or second degree.

Specifically, the jury was instructed pursuant to CALCRIM No. 520 on express and

implied malice in as follows: “The defendants are charged in Count one with murder.

[¶] To prove that a defendant is guilty of this crime, the People must prove that: [¶] 1.

The defendant committed an act that caused the death of another person; [¶] AND [¶]

2. When the defendant acted, he had a state of mind called malice aforethought. [¶]

There are two kinds of malice aforethought, express malice and implied malice. Proof of

either is sufficient to establish the state of mind required for murder. [¶] The defendant

acted with express malice if he unlawfully intended to kill. [¶] The defendant acted with

implied malice if: [¶] 1. He intentionally committed an act; [¶] 2. The natural

consequences of the act were dangerous to human life; [¶] 3. At the time he acted, he

knew his act was dangerous to human life; [¶] AND [¶] 4. He deliberately acted with

conscious disregard for human life. [¶] Malice aforethought does not require hatred or ill

will toward the victim. It is a mental state that must be formed before the act that caused

death is committed. It does not require deliberation or the passage of any particular

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period of time. The jury found Rodriguez guilty of second degree murder. In other

words, the jury rejected defense’s theory of the case that he did not intend to commit

murder and found that Rodriguez committed the murder, as either a direct perpetrator or a

direct aider and abettor.

Although CALCRIM No. 520 used the term “‘“natural and probable

consequences,”’” which could be similar to the natural and probable consequences

doctrine, these are two “distinctly different concepts.” (Soto, supra, 51 Cal.App.5th at p.

1056; accord, People v. Chiu (2014) 59 Cal.4th 155, 158, abrogated on another ground by

Sen. Bill No. 1437 (2017-2018 Reg. Sess.).) The “natural consequences” language in

instructions “does not transform [a petitioner’s] conviction into one for murder under the

natural and probable consequences doctrine within the meaning of section 1170.95.”

(Soto, supra, at p. 1059.)

A direct aider and abettor to murder must at least share the mens rea of the actual

perpetrator, i.e., express or implied malice. (Soto, supra, 51 Cal.App.5th at p. 1057.)

“For implied malice murder, [the requisite] intent is that the perpetrator ‘“knows that his

conduct endangers the life of another and . . . acts with conscious disregard for life.”’

[Citation.] The ‘physical component’ required for implied malice murder ‘is satisfied by

the performance of “an act, the natural consequences of which are dangerous to life.”’”

(Id. at p. 1058.) In contrast, an accomplice whose liability for murder is premised on the

natural and probable consequences doctrine “need only intend to aid a different, less

serious ‘target’ crime,” the natural and probable consequence of which is murder. (Id. at

16
p. 1057.) Here, the jury was not instructed on the natural and probable consequence

doctrine or any target crime upon which murder based on a natural and probable

consequences theory could be predicated. (See People v. Daniel, supra, 57 Cal.App.5th

at p. 677 [defendant ineligible for relief where jury was not instructed on felony murder

or natural and probable consequences doctrine]; People v. Mancilla (2021) 67

Cal.App.5th 854, 866-867 [conviction based on actual malice under provocative act

theory].) Rodriguez was therefore necessarily convicted under a still-valid theory. (See

People v. Powell (2021) 63 Cal.App.5th 689, 714 [rejecting the defendant’s contention

that direct aiding and abetting implied malice murder is an invalid legal theory].)

Rodriguez does not suggest his jury was instructed on the natural and probable

consequences doctrine or the felony-murder rule, and the record in his direct appeal

shows the jury was not instructed on those theories of liability. Therefore, Rodriguez is

ineligible for relief under section 1170.95 as a matter of law.

Rodriguez argues he is eligible for relief under section 1170.95 because the trial

court instructed the jury on aiding and abetting with CALCRIM No. 400, which was
8
amended in 2011 after his trial. He contends the “equally guilty” language was

confusing and misleading because it suggested the jurors could (or even should) impute

Vinny’s or Benjamin’s mental state to Rodriguez without considering Rodriguez’s mental

state. The possibility that Rodriguez could have been convicted at trial under an imputed

8
In April 2010, the Judicial Council revised CALCRIM No. 400 to remove the
word “equally” from the phrase “equally guilty.” (People v. Johnson (2016) 62 Cal.4th
600, 640 & fn. 5.)

17
malice theory which is now invalid under section 188 was foreclosed by the trial court’s

additional instruction on aiding and abetting, CALCRIM No. 401. That instruction, as

noted above, explained that an aider and abettor had to know the unlawful purpose of the

perpetrator, intend to encourage or facilitate the commission of the crime, and by act or

advice, aid or encourage the commission of the crime.” Where, as here, the trial court

instructs the jury with CALCRIM No. 401, there is no reasonable likelihood the jurors

would have understood the equally guilty language [in CALCRIM former No. 400] to

allow them to base defendant’s liability for first degree murder on the mental state of the

actual shooter, rather than on defendant’s own mental state in aiding and abetting the

killing. (People v. Johnson (2016) 62 Cal.4th 600, 641; see id. at pp. 640-641 [because

the trial court “instructed the jury with CALCRIM No. 401, which sets out the

requirements for establishing aider and abettor liability,” the jury “was informed that for

them to find defendant guilty of murder as an aider and abettor the prosecution must

prove that [the] defendant knew [the perpetrator] intended to kill [the victim], that he

intended to aid and abet [the perpetrator] in committing the killing, and that he did in fact

aid him in that killing, which would have cleared up any ambiguity arguably presented by

CALCRIM former No. 400’s reference to principals being ‘equally guilty’”].)

Because Rodriguez was not convicted of felony murder or murder under a natural

and probable consequences or other imputed malice theory, he is ineligible for

resentencing as a matter of law. We therefore conclude the trial court did not err in

denying Rodriguez’s petition for resentencing.

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 IV.

DISPOSITION

The order denying the petition for resentencing is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON
Acting P. J.

We concur:

FIELDS
J.

RAPHAEL
J.

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