People v. Rodriguez CA2/2

Filed 1/29/21 P. v. Rodriguez CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

THE PEOPLE, B305739

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA024452) v.

VIDAL RODRIGUEZ,

Defendant and Appellant.

THE COURT: On August 12, 1991, a jury found Vidal Rodriguez (Rodriguez) and codefendant Adam Riojas (Riojas)1 guilty of murder in the second degree. (Pen. Code, § 187, subd. (a).)2 The trial court sentenced Riojas to a term of 17 years to life in state prison and Rodriguez to a term of 15 years to life in state prison.

1 Riojas is not a party to this appeal.

2 All further statutory references are to the Penal Code unless otherwise indicated.

The Court of Appeal affirmed Rodriguez’s conviction in People v. Riojas (July 13, 1993, B063404) [nonpub. opn.]. On February 21, 2019, Rodriguez filed a petition for resentencing under section 1170.95.3 On February 3, 2020, the trial court issued a written decision denying Rodriguez’s petition based on its conclusion that he was ineligible for relief. The trial court offered the following explanation: “[Rodriguez] was convicted of murder, but the record of conviction reflects that the

3 Senate Bill No. 1437 (2017-2018 Reg. Sess.), which went into effect on January 1, 2019 (see Stats. 2018, ch. 1015, § 4), added section 1170.95 and amended sections 188 and 189. “As amended, section 188 limits a finding of malice: ‘Except as stated in subdivision (e) of Section 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).) As added by Senate Bill [No.] 1437, subdivision (c) of section 189 reads: ‘A participant in the perpetration or attempted perpetration of a felony listed in subdivision (a) . . . in which a death occurs is liable for murder only if one of the following is proven: [¶] ‘(1) The person was the actual killer. [¶] ‘(2) The person 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 murder in the first degree. [¶] ‘(3) The person was a major participant in the underlying felony and acted with reckless indifference to human life[.]” (People v. Ramirez (2019) 41 Cal.App.5th 923, 928 (Ramirez).) Section 1170.95 permits a defendant to file a petition with the court that sentenced the defendant for resentencing if he was convicted under a theory of felony murder or murder under the natural and probable consequences doctrine, and if he could not have been convicted under the changes to sections 188 and 189 made effective January 1, 2019. (Ramirez, supra, 41 Cal.App.5th at p. 929.)