People v. Rodriguez CA2/8

Filed 3/3/21 P. v. Rodriguez CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT

THE PEOPLE, B305365

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA405944) v.

JOE RODRIGUEZ,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County. David R. Fields, Judge. Affirmed. Edward H. Schulman, 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 Paul S. Thies, Deputy Attorneys General, for Plaintiff and Respondent.

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Defendant and appellant Joe Rodriguez was convicted of one count of first degree murder and two counts of premeditated attempted murder arising from his participation in a 2012 gang- related shooting. In 2016, we affirmed defendant’s conviction with a modification of sentence not relevant to the present appeal. (People v. Rodriguez (Oct. 20, 2016, B265581) [nonpub. opn.].) After the passage of Senate Bill No. 1437 (2017–2018 Reg. Sess.) in 2018, defendant filed a petition for resentencing pursuant to Penal Code section 1170.95. Section 1170.95 was enacted as part of the legislative changes effected by Senate Bill No. 1437 and became effective January 1, 2019. (Stats. 2018, ch. 1015, § 4.) Defendant, acting in propria persona, filed a form petition in which he checked the boxes stating he had been convicted of first or second degree murder under the felony murder rule or the natural and probable consequences doctrine and that he could no longer be so convicted in light of the changes made to sections 188 and 189 by Senate Bill No. 1437. Defendant also requested the appointment of counsel. Defendant’s petition did not seek relief with respect to his convictions for attempted murder. At a hearing in February 2020, the trial court summarily denied defendant’s petition without appointing counsel. Relying on our prior opinion affirming defendant’s conviction, the trial court found defendant was not eligible for resentencing and could not make out a prima facie case because he had been convicted as a direct aider and abettor and not under a natural and probable consequences theory. Defendant appealed. He contends the trial court erred in summarily denying his resentencing petition without first