People v. Rodriguez CA2/5

Filed 3/14/24 P. v. Rodriguez CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE

THE PEOPLE, B325633

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. v. BA083688)

SAUL RODRIGUEZ,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Robert C. Vanderet, Judge. Reversed and remanded with directions. Olivia Meme, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Noah P. Hill and Nima Razfar, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant and appellant Saul Rodriguez appeals from the trial court’s summary denial of his Penal Code section 1172.6 1 (former § 1170.95) resentencing petition without appointing counsel. The Attorney General concedes the trial court erred by not appointing counsel, but argues the error was harmless because defendant, as the actual killer, is ineligible for relief as a matter of law. On this record, where defendant was convicted of first degree murder under a theory allowing imputed malice, we cannot conclude the trial court’s error was harmless. During defendant’s trial in July 1994, the jury was instructed on the felony-murder theory of liability for first degree murder: “Every person who unlawfully kills a human being with malice aforethought or during the commission of a robbery, a felony inherently dangerous to human life, is guilty of the crime of murder . . . . The unlawful killing of a human being, whether intentional, unintentional or accidental, which occurs during the commission of the crime of robbery is murder of the first degree when the perpetrator had the specific intent to commit such crime.” (CALJIC Nos. 8.10, 8.21.) For the special circumstance allegation, the jury was instructed to make a true finding if “[t]he murder was committed while the defendant was engaged in the commission of a robbery” and “in order to carry out or advance the commission of the crime of robbery” with the requirement that defendant is the actual killer or an aider and abettor with the intent to kill crossed out. (CALJIC Nos. 8.80.1, 8.81.17.) Defendant was convicted of first degree murder with a true special circumstance finding that he committed the murder while