People v. Rodriguez CA2/5

Filed 11/25/20 P. v. Rodriguez CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, B298424

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA188897) v.

MARTIN RODRIGUEZ,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Robert J. Perry, Judge. Reversed and remanded. Marilee Marshall, 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, Charles S. Lee and Viet H. Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant and appellant Martin Rodriguez (defendant) appeals from an order denying his petition for resentencing pursuant to Penal Code section 1170.95.1 The Attorney General concedes a remand for further section 1170.95 proceedings is required, and that is what we shall order. A jury convicted defendant of one count of first degree murder (§ 187, subd. (a)) based on evidence the murder victim was fatally shot while in defendant’s car to obtain marijuana. The jury was unable to reach a verdict on: a charged count of second degree robbery (§ 211), an allegation that defendant committed the murder while engaged in a robbery (§ 190, subd. (a)(3), (17)), and gun use enhancements (§§ 1203.6, subd. (a)(1), 12022.5, subd. (a)(1), 12022.53, subds. (b)-(d)). The trial court sentenced defendant to 25 years to life in prison. On direct appeal, defendant argued the jury instructions (which included theories of liability for first degree murder, felony murder, aiding and abetting, and the natural and probable consequences doctrine) permitted a lack of unanimity. We affirmed defendant’s conviction, holding the jury only had to agree that defendant committed first degree murder, which it unanimously did. In January 2019, defendant filed a section 1170.95 petition seeking to vacate his murder conviction because, he contended, he was not the actual killer, he did not harbor an intent to kill, and he was not a major participant in the crimes of conviction who acted with reckless indifference to human life. The trial court appointed counsel for defendant, and the People filed an