People v. Rodriguez

58 Cal.App.5th 227

272 Cal.Rptr.3d 342

The PEOPLE, Plaintiff and Respondent,

v.David Daniel RODRIGUEZ, Defendant and Appellant.

B303099

Court of Appeal, Second District, Division 7, California.

Filed December 7, 2020

Eric R. Larson, San Diego, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, Michael J. Wise, Charles Lee, Deputy Attorneys General, for Plaintiff and Respondent.

PERLUSS, P. J.

A jury acquitted David Daniel Rodriguez and Alonso Delgado of the first degree premeditated murder of Frankie Lopez, found both men guilty of second degree murder and also found true special allegations a principal had intentionally discharged a firearm causing Lopez's death and the murder had been committed for the benefit of a criminal street gang. Rodriguez and Delgado were each sentenced to state prison terms of 40 years to life. This court affirmed the convictions on direct appeal. ( People v. Delgado (May 31, 2007, B187062), 2007 WL 1559817 [nonpub. opn.].)

On January 7, 2019 Rodriguez petitioned to vacate his murder conviction and for resentencing under Penal Code section 1170.95.¹ Rodriguez attached to the petition a copy of CALJIC No. 3.02, the natural and probable consequences instruction given at his trial. After appointing counsel to represent Rodriguez and conducting a hearing following issuance of an order to show cause, the superior court denied the petition, finding, "[T]here is sufficient evidence in the record to support an express malice murder theory for purposes of the standard of proof required that would implicate Mr. Rodriguez in the killing of Mr. Frankie Lopez."

On appeal Rodriguez contends the superior court committed prejudicial error by applying an incorrect standard of proof and by relying on inadmissible hearsay evidence to support its finding as to express malice. Rodriguez also argues, when evaluated under the proper standard, the court's finding he either was the actual shooter or directly aided and abetted Lopez's murder was not supported by substantial evidence.

As the court of appeal did recently in People v. Lopez (2020), 56 Cal.App.5th 936, 271 Cal.Rptr.3d 170 ( Lopez ), we hold section 1170.95 requires the prosecutor to prove beyond a reasonable doubt each element of first or second degree murder under current law to establish a petitioner's ineligibility for relief under that statute. We agree with Rodriguez the superior court here used an improper standard, concluding he was ineligible for relief under section 1170.95 because the record could support a finding of express malice murder beyond a reasonable doubt, rather than based on its own finding beyond a reasonable doubt that Rodriguez would be guilty of murder within the meaning of sections 188 and 189, as amended by Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018, ch. 1015) (Senate Bill 1437). Accordingly, we reverse the order denying Rodriguez's petition and remand for a new evidentiary hearing on Rodriguez's eligibility for relief.

FACTUAL AND PROCEDURAL BACKGROUND

1. Rodriguez's Conviction for Murder

The People's theory of the case was retaliation for an earlier, gang-related shooting of Rodriguez, who, like his codefendant Delgado, was a Pomona Sur Trece gang member.

On December 25, 2004 at approximately 8:00 p.m., an unidentified man knocked on Luci Garcia's apartment door and asked for Frankie Lopez, her son, by name and said he wanted to speak to him.² Lopez, who was standing behind his mother when she opened the door, followed the man from the apartment and closed the door. Garcia again opened the door and saw Lopez walking down the hallway with the unidentified man and Delgado, who looked back and made eye contact with her.

Lopez's sister went into the hallway a few seconds after Lopez left the apartment and saw Lopez with Delgado standing on the porch at the end of the hallway. Rodriguez was off the porch in the parking lot/alley. The unidentified man was still standing in the hallway. Suddenly, Lopez began running toward his sister. The sister heard a gunshot. A neighbor heard a voice say "Get him, dog. Get him." After a second shot was fired, Lopez fell to the ground. He died from a gunshot wound to the back of his head.

Approximately three weeks prior to Lopez's shooting Rodriguez had fought in the parking lot of Lopez's apartment building with Anthony Coronado, a member of the rival gang Azusa 13, because, according to Rodriguez, Coronado "wanted to come and talk shit to me, and disrespected me." Coronado had previously lived with Lopez's family for approximately two years and was a friend of Lopez. (Lopez's sister said Coronado was "like a cousin.") A week or two after the fight Rodriguez was shot in the back while he was at a park across the street from the apartment building. Lopez's sister testified she was outside her apartment just before Rodriguez got shot and saw Coronado cover his face with a bandana and run across the street to the park with a rifle. After Lopez's sister heard shots fired, Coronado ran back to her apartment, where he left the rifle. Although Rodriguez claimed he did not know who shot him, he admitted in a videotaped interview with detectives, which was played for the jury, he knew there would be retaliation for his fight with Coronado.

Delgado explained the motivation for attacking Lopez, who was not a gang member, in a tape recorded police interview introduced at Delgado and Rodriguez's joint trial only as to Delgado. Delgado admitted he had gone to Lopez's door, but claimed he had walked back to the car and was opening the car door when the shooting occurred and did not know the other men intended to shoot Lopez. Delgado told detectives his "homies" wanted Delgado to come with them to talk to Lopez because "Frankie had everything to do with all this that happened.... He was the main person they had to kill for every single thing.... The fool that shot [Rodriguez] wasn't even a concern." Delgado explained his fellow gang members’ perspective, "Because if we take [Frankie] out, we don't got to worry about this fool coming over here no more doing that, cause’ [sic ] Frankie can't call them and tell them yea sur trece is right there in the park.... Frankie can't do that no more. He can't shoot at us, and run and hide in Frankie's house until the police leave again, he can't do that no more." Delgado denied Rodriguez had been present but would not identify the others who were there. He also claimed his friends had told him they were not going to kill Lopez; but Delgado acknowledged he knew they were taking a gun and said to his friends, "You taking a gun for a reason." The jury was instructed on first and second degree murder; express and implied malice; accomplice liability; and, pursuant to CALJIC No. 3.02, murder as the natural and probable consequence of the target crime of misdemeanor assault (§ 240). The jury found Delgado and Rodriguez not guilty of first degree murder, but guilty of second degree murder. It also found true special allegations a principal had intentionally discharged a firearm causing death and the murder had been committed for the benefit of a criminal street gang. Each defendant was sentenced to an aggregate state prison term of 40 years to life: 15 years to life for second degree murder and an additional consecutive term of 25 years to life pursuant to section 12022.53, subdivisions (d) and (e)(1).

In affirming both judgments on appeal we rejected, among other arguments, Delgado's contentions it was impermissible as a matter of law to base a murder conviction under the natural and probable consequences doctrine on a minor target offense such as misdemeanor assault and, in any event, the evidence was insufficient to support the finding Lopez's murder was the natural and probable consequence of the intended assault. We also refused to adopt Rodriguez's argument that individuals who did not personally use a firearm and were only liable for one of the offenses enumerated in section 12022.53, subdivision (a), under the natural and probable consequences doctrine, should not be considered "principals" for purpose of the firearm enhancement in section 12022.53, subdivision (e)(1).³ We did not discuss any other theory of liability for murder in our opinion.

2. Rodriguez's Petition for Resentencing

Rodriguez, representing himself, petitioned to vacate his murder conviction pursuant to section 1170.95 on January 7, 2019, six days after the effective date of Senate Bill 1437, which limited the felony murder rule and eliminated the natural and probable consequences doctrine as it relates to murder through amendments to sections 188 and 189. In a declaration supporting the petition Rodriguez stated, in part, "At trial the jury was instructed on the doctrine of natural and probable consequences CALJIC 3.02 [citation] attached as Exhibit B. Further the District Attorney argued that both defendants were guilty under the natural and probable consequences theory." Rodriguez averred he could not be convicted of first or second degree murder as of January 1, 2019 "due to the enactment of changes to Penal Code 188." Rodriguez requested the court reappoint as his counsel the lawyer who had represented him at trial.

After reviewing the petition, the court ruled Rodriguez was entitled to counsel and granted his request for reappointment of counsel who had represented him at trial.⁴ The court also granted the People's request for an extension of time to file an informal opposition to the petition.

In its initial opposition the People contended Senate Bill 1437 was unconstitutional. Counsel for Rodriguez filed a brief responding to that issue. The People filed a further opposition arguing the petition should be denied on the merits based on the trial record. After asserting...