People v. Rodriguez CA4/3

Filed 4/10/23 P. v. Rodriguez CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G061568

v. (Super. Ct. No. 02NF0806)

GABRIEL RODRIGUEZ, OPI NION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, Gregg L. Prickett, Judge. Affirmed. Barbara A. Smith, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. * * *

1 This is another of the burgeoning Wende filings occasioned by recent legislative changes that are, not surprisingly, confusing to people who have not received a legal education. Appellant was convicted in 2003 of attempted premeditated murder; he fired 10 shots at his victim and hit him twice. It was found to be true that he had used a firearm and inflicted great bodily injury. The sentences at issue here are for attempted premeditated murder and firearm usage. He was sentenced to life with the possibility of parole for the attempted murder and 25 years to life for the firearm use. We affirmed his convictions on appeal. (People v. Rodriguez (Dec. 14, 2004, G032794) [nonpub. opn.].) In 2022, appellant filed this action, seeking relief pursuant to newly-enacted 2 Penal Code section 1170.95. Section 1170.95 is the procedural mechanism for implementing legislative changes in California law which narrow the scope of vicarious liability for murder in two ways. First, the Legislature eliminated the natural and probable consequences theory for that crime by providing that “[m]alice shall not be imputed to a person based solely on his or her participation in a crime.” (§ 188, subd. (a)(3).) Second, it reined in the felony murder rule so that it can only be applied to nonkillers if they aided and abetted the killer in committing first degree murder, or they were a major participant in the underlying felony and acted recklessly indifferent to human life. (§ 189, subd. (e).) To obtain relief under the new section, the defendant must show 1) he was prosecuted for murder under the felony murder rule or the natural and probable consequences doctrine, 2) he was ultimately convicted of first or second degree murder, and 3) and he would not be liable for murder today because of how the Legislature has redefined that offense. (§ 1170.95, subd. (a).)