People v. Rodriguez CA2/3

Filed 12/15/20 P. v. Rodriguez CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

THE PEOPLE, B301849

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. A638496) v.

JOHNNY M. RODRIGUEZ,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Tammy Chung Ryu, Judge. Affirmed. Jonathan E. Demson, 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, Assistant Attorney General, Charles S. Lee and David W. Williams, Deputy Attorneys General, for Plaintiff and Respondent. ——————————

Johnny M. Rodriguez pleaded guilty to second degree murder. Years later, he petitioned for resentencing under Penal Code1 section 1170.95. After appointing counsel for Rodriguez and soliciting briefing, the trial court denied the petition without issuing an order to show cause. We conclude that the trial court properly denied the petition. BACKGROUND According to a probation report, Rodriguez was a member of the Tortilla Flats gang. The victim David Martinez was in a car with his wife and four others, including his two children. Rodriguez pointed a gun at Martinez and demanded money. Martinez threw money at Rodriguez and drove away, but Rodriguez fired three or four times, killing Martinez. Rodriguez was charged with second degree murder (§ 187; count 1), robbery (§ 211; count 2), assault with a firearm with an attempt to cause great bodily injury (§ 245, subd. (a); count 3), attempted robbery (§§ 664, 211; count 4), and discharging a firearm at an occupied vehicle (§ 246; count 5). Firearm enhancements under sections 12022.5 and 1203.06, subdivision (a)(1) were also alleged. Rodriguez pleaded guilty to second degree murder and admitted a gun allegation (§ 12022.5). In 1987, the trial court sentenced Rodriguez to an indeterminate term of 15 years to life plus a two-year determinate term. Thereafter, our Legislature passed Senate Bill No. 1437 (2017–2018 Reg. Sess.), which took effect January 1, 2019. That law amended the felony-murder rule and eliminated the natural and probable consequences doctrine as it relates to murder, all to