People v. Rodriguez CA4/1
- Proceeding
- appeal from an order
- Trial judge
- Timothy R. Walsh
- Outcome
- reversed — Reversed and remanded with directions.
- Area
- criminal
- Panel
- Richard D. Huffman, Sr. (author), Judith L. Haller, Cynthia Aaron
Analysis
The trial court denied Rodriguez's petition for resentencing under Penal Code section 1170.95, finding he was ineligible as a direct aider and abettor based on its review of the trial record. The Court of Appeal reversed, holding that the trial court impermissibly engaged in factfinding at the prima facie stage and remanded for an order to show cause and an evidentiary hearing.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of petition for resentencing under Penal Code section 1170.95 at the prima facie stage“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.” | de novo | error | agree with court agree with court |
Authorities
- relied: People v. Verdugo (2020) 44 Cal.App.5th 320 — 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.
- relied: People v. Drayton (2020) 47 Cal.App.5th 965 — 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.
The appellate opinion: sound — The opinion correctly identifies that the trial court's reliance on specific trial evidence (witness testimony about holding the victim) constituted impermissible factfinding at the prima facie stage. It accurately applies the standard that eligibility can only be denied at this stage if the record of conviction alone establishes ineligibility without weighing evidence or making credibility determinations.
How this analysis was made · dispute it
unusual dispositionThe trial court denied Eric Rodriguez's Penal Code section 1170.95 resentencing petition at the prima facie stage, finding from its own review of the trial transcript that he was a direct aider and abettor who shared the killer's intent to kill. The Court of Appeal, accepting the Attorney General's concession, reversed and remanded with directions to issue an order to show cause and hold an evidentiary hearing because the trial court engaged in impermissible factfinding and the jury had been instructed on a natural and probable consequences theory.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of section 1170.95 petition at the prima facie stage on the ground that the record of conviction showed petitioner was a direct aider and abettor with intent to kill“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.” | unclear | error (procedure) | agree with court The trial court's own order recites that it reviewed witness testimony and drew the inference that holding the victim demonstrated shared intent to kill; that is weighing evidence, not identifying a conviction ineligible as a matter of law. Because the jury was instructed on natural and probable consequences and the verdict did not necessarily rest on a direct-aiding theory, the record of conviction did not refute the petition as a matter of law, so an OSC and evidentiary hearing were required under Drayton and (unmentioned) People v. Lewis. |
Authorities
- relied: People v. Verdugo (2020) 44 Cal.App.5th 320 — A trial court may deny a section 1170.95 petition at the prima facie stage only if the record of conviction establishes ineligibility as a matter of law without factfinding.
- relied: People v. Drayton (2020) 47 Cal.App.5th 965 — At the prima facie stage the court must accept the petitioner's allegations as true unless refuted by the record of conviction and may not weigh evidence or make credibility determinations.
- missed: People v. Lewis (2021) 11 Cal.5th 952 — The prima facie inquiry under section 1170.95, subdivision (c) is limited; the court may consult the record of conviction but may not engage in factfinding involving the weighing of evidence or the exercise of discretion, and should issue an OSC unless the record conclusively refutes the petitioner's allegations.
The appellate opinion: sound with gaps — The court correctly identified that the trial court weighed trial testimony and drew inferences about intent, which cannot be done at the prima facie stage, and the natural and probable consequences instruction meant the conviction could rest on a now-invalid theory. However, the opinion relied on Verdugo (review granted) and Drayton without citing the Supreme Court's binding decision in People v. Lewis, filed a month earlier, which directly governs the prima facie standard.
Opinion
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 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.
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 3 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 4 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.