People v. Rodriguez CA2/6

Filed 10/19/21 P. v. Rodriguez CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX

THE PEOPLE, 2d Crim. No. B303427 (Super. Ct. No. 2008012605) Plaintiff and Respondent, (Ventura County)

v.

PETER RODRIGUEZ,

Defendant and Appellant.

Peter Rodriguez (petitioner) was convicted, by jury, of the second degree murder of John Orrantia (Pen. Code, §§ 187, subd. (a), 189)1 and of assault with a deadly weapon and by means of force likely to produce great bodily injury on Orlando Orrantia. (§ 245, subd. (a)(1).) We affirmed the convictions in an unpublished opinion. (People v. Rodriguez (Feb. 16, 2011, B215469 (Rodriguez).) In 2019, Rodriguez filed a petition for resentencing under section 1170.95. The trial court appointed

All statutory references are to the Penal Code unless 1

otherwise stated.

counsel for petitioner and ordered briefing. After reviewing the parties’ briefs, the trial court concluded petitioner had not made a prima facie case for relief and denied the petition. We conclude the trial court erred in denying the petition before issuing an order to show cause and holding an evidentiary hearing. Accordingly, we reverse and remand the case for further proceedings. Facts In 2009, petitioner was convicted, by jury, of the second degree murder of John Orrantia and of assault with a deadly weapon on Orlando Orrantia. The jury found petitioner not guilty of street terrorism (§ 186.22, subd. (a)), and found not true an allegation that the offenses were committed for the benefit of a street gang. (§ 186.22, subd. (b)(1).) Petitioner’s co- defendant, Gustavo Tapia, was found not guilty of John’s murder and of street terrorism, but was convicted of assault with a deadly weapon on Orlando. The jury found not true the allegations that Tapia personally used a deadly and dangerous weapon (§ 12022, subd. (b)(1)), that he personally inflicted great bodily injury on Orlando (§ 12022.7, subd. (a)), and that he acted to benefit a street gang. (§ 186.22, subd. (b)(1).) We affirmed petitioner’s convictions in an unpublished opinion. (Rodriguez, supra, B215469.) The Crime. We summarize the statement of facts from our prior opinion on petitioner’s direct appeal: In January 2006, petitioner and Gustavo Tapia attended a large party in Ventura, arriving in a black Toyota Camry that was registered to Tapia’s parents. John Orrantia and his brother Orlando attended the same party. John’s ex-girlfriend, Megan Walpole, drove John to the party in her black Toyota Camry. The two