People v. Rodriguez CA4/1

Filed 8/23/21 P. v. Rodriguez CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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