People v. Rodarte CA2/3

California Court of Appeal Jan 17, 2023 No. B320032Unpublished

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Holding. The court affirmed the denial of the defendant's petition for resentencing under Penal Code section 1172.6, finding that the trial court's failure to appoint counsel was harmless error because the record established the defendant was the actual killer and ineligible for relief as a matter of law.

Issues

Did the trial court err in summarily denying the defendant's petition for resentencing without appointing counsel?
Is the defendant statutorily ineligible for relief under Penal Code section 1172.6 based on the record of conviction?

Disposition. Affirmed

Quotations verified verbatim against the opinion

“we find the failure to appoint counsel and permit briefing to be harmless because there is no evidence in the record that the jury was instructed on felony murder, the natural and probable consequences doctrine, aiding and abetting”

“The record therefore shows that defendant was convicted as Michael Avalos’s actual killer, and of directly attempting to kill Andrew Avalos. Because he is statutorily ineligible for relief, it is not reasonably probable that if defendant had been”

Filed 1/17/23 P. v. Rodarte CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Ca l ifornia Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on o p inions not certified for publication or ordered published, except as specified by rule 8.1115(a). This o p inion has not been certified for publication or ordered published for purposes of rule 8.1115(a).

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT DIVISION THREE

THE PEOPLE, B320032

Plaintiff and Respondent, Los Angeles County Super. Ct. No. TA088727 v.

RICARDO CONTRERAS RODARTE,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Pat Connolly, Judge. Affirmed. Marta I. Stanton, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.

INTRODUCTION

Defendant Ricardo Contreras Rodarte filed a petition for resentencing under Penal Code1 section 1170.95.2 The trial court summarily denied the petition without appointing counsel and without issuing an order to show cause. Defendant appeals from the March 24, 2022 order denying his resentencing petition, and his appointed counsel filed a brief under the procedures outlined in People v. Wende (1979) 25 Cal.3d 436. By letter dated November 8, 2022, we gave defendant 30 days to submit additional briefing or a letter stating any grounds for an appeal, or contentions, or arguments which he wishes this court to consider. To date he has not done so. After reviewing the record in this appeal, we find no appealable issue. Accordingly, we affirm the order.

BACKGROUND

A detailed recitation of the facts is provided in this court’s prior opinion. (People v. Rodarte et al. (Oct. 6, 2010, B209233) [nonpub. opn.] (Rodarte).) In sum, on January 12, 2007, defendant got out of a truck and walked towards Andrew Avalos and Michael Avalos with a gun in his hand. When defendant was 15 feet away from them, he pointed the gun at them and started walking towards them. Andrew and Michael fled into an alley, and defendant fired shots at them. Andrew was hit twice in the leg and fell down. Defendant moved into the alley while shooting

People v. Rodarte CA2/3

AI Brief

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT DIVISION THREE

THE PEOPLE, B320032

RICARDO CONTRERAS RODARTE,

INTRODUCTION

BACKGROUND

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DISCUSSION

DISPOSITION

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

EDMON, P. J.

EGERTON, J.

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