People v. Buckley CA3

Filed 11/28/22 P. v. Buckley CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE,

Plaintiff and Respondent, C096324

v. (Super. Ct. No. 06F10601)

RODNEY BUCKLEY, JR.,

Defendant and Appellant.

Appointed counsel for defendant Rodney Charles Buckley, Jr., asked this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) Finding no arguable error that would result in a disposition more favorable to defendant, we will affirm the trial court’s order denying defendant’s petition for resentencing. I In 2006, defendant’s friend Ricky Devon Taylor V was involved in several verbal and physical confrontations with his roommates, Sara S. and Rodney A. Sara and Rodney left the apartment, taking a gun with them. Upon learning Taylor was damaging Sara’s property, Sara’s father, Alfred O. and his cousin, Alberto R., returned to the apartment to get her things. Taylor greeted Alberto at the door, armed with a handgun. Defendant was nearby, holding a shotgun, and pat-searched Alberto. A few minutes

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later, Alfred knocked on the door and was also greeted with guns drawn. Alfred grabbed Taylor’s gun and began to wrestle with him. Taylor and defendant began firing at Alfred and Alfred returned fire. Alberto saw defendant had a clear shot at Alfred and stepped between them, holding his hands up. Defendant shot Alberto in the chest. Alfred, defendant and Taylor also sustained gunshot wounds. A jury convicted defendant of two counts of attempted murder (Pen. Code, §§ 664/187)1 and found true gang (§ 186.22, subd. (b)(1)) and firearm enhancements (§ 12022.53, subd. (d)). On appeal, this court affirmed the convictions and the firearm enhancement, but reversed the gang enhancement. (People v. Taylor (Sep. 7, 2011, C062726) [nonpub. opn.].)2 On January 19, 2021, defendant filed a form petition for resentencing under section 1172.6.3 Defendant checked the boxes indicating he was convicted pursuant to the felony-murder rule or the natural and probable consequences doctrine and could not now be convicted due to the changes to sections 188 and 189, effective January 1, 2019. On April 22, 2022, the trial court held a prima facie hearing on defendant’s petition and found he was not entitled to relief because the jury instructions did not include a felony murder or natural and probable consequences instruction. II Appointed counsel filed an opening brief setting forth the facts of the case and asking this court to review the record and determine whether there are any arguable