Filed 8/26/20 P. v. Rodriguez CA2/1
   NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

 THE PEOPLE,                                                       B299824

           Plaintiff and Respondent,                               (Los Angeles County
                                                                   Super. Ct. No. BA127363)
           v.

 JOSEPH ARTHUR RODRIGUEZ,

           Defendant and Appellant.



     APPEAL from an order of the Superior Court of
Los Angeles County, George G. Lomeli, Judge. Reversed.
                ____________________________

      Jonathan E. Demson, under appointment by the Court of
Appeal, for Defendant and Appellant.
      Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Kristen J. Inberg and Blythe J. Leszkay,
Deputy Attorneys General, for Plaintiff and Respondent.
                             ____________________________
       The trial court summarily denied defendant and appellant
Joseph Arthur Rodriguez’s petition for resentencing under
Penal Code1 section 1170.95 on his murder conviction on the
grounds that the statute violates the California constitution and
that, in any case, Rodriguez was the actual killer and therefore
ineligible for resentencing under the statute. Rodriguez contends
that the trial court erred with respect to both of its conclusions.
The Attorney General agrees, as do we. The law is not
unconstitutional, and the record of conviction does not show as a
matter of law that Rodriguez was the actual killer. We therefore
reverse.2

            FACTS AND PROCEEDINGS BELOW
       In a prior opinion in which we affirmed Rodriguez’s
conviction on direct appeal (People v. Rodriguez (June 11, 1998,
B115514) [nonpub. opn.] (Rodriguez)), we described the facts of
his case:
       “The murder victim (Paz) and her live-in male friend
(Aguilar) went to a bar to drink and play pool. The two ended up
in a disagreement over whether to leave and Paz walked off alone
down the median strip of the road. Aguilar did not think much
of her departure, as she had done this before and would typically
call later to have Aguilar pick her up.


      1Unless otherwise specified, subsequent statutory
references are to the Penal Code.
      2 On October 16, 2019, Rodriguez filed a petition for
a writ of habeas corpus, which we ordered to be considered
concurrently with this appeal. (In re Joseph Arthur Rodriguez,
case No. B301503.) Rodriguez’s petition for writ of habeas
corpus is denied by separate order filed concurrently herewith.




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       “As Paz walked down the median strip, three assailants
accosted her. A witness heard a gunshot, a woman scream, and
another gunshot. He looked out the window to see three males
running from the scene. They stopped, briefly huddled, then ran
off. The witness identified defendant as one of the three. Police
found Paz dead, shot in the face. Her watch was found nearby.
Abrasions on her arm indicated the watch had been forcibly
removed.” (Rodriguez, supra, B115514, pp. 2–3.)
       The witness who heard the shooting recognized Rodriguez
as one of the people he had seen fleeing from the scene. Police
officers brought Rodriguez to the station and interviewed him
there. At first, he said that he had heard about the shooting
but denied that he was present or had any involvement in it. A
detective then told him that a witness had seen him fleeing from
the scene of the crime. Rodriguez admitted he was involved and
made the following written statement:
       “I was with my homeboys. I didn’t know their names and
we were walking on Huntington Drive. And we saw this lady
walking alone on the strip in the street. The two guys I [was]
with said they wanted to see if the lady had any money to jack.
So we walked up to her. I stood away near the sidewalk. Then
I heard a shot and saw the lady fall down. So the homeboys
started to run. So I ran too, down the street and up Esmeralda.
That’s all I know. That’s all I did.”
       The police officers then allowed one of Rodriguez’s friends,
named Peter, to go into the interview room to speak with
Rodriguez alone. The conversation was not recorded, but police
officers used an electronic device to listen in. Two detectives gave
similar accounts of the conversation. According to one officer,
Peter walked into the room and immediately asked, “Hey dog, did




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you kill that lady?” Rodriguez responded, “Yeah.” Peter asked,
“With the twenty-two?”3 Rodriguez replied, “Yeah.” Peter
then said, “I almost bought that twenty-two.” Rodriguez asked
Peter how much time he could get if convicted of murder, and
Peter replied, “Probably until you’re twenty-five.” Rodriguez
then said something to the effect of, “Fuck it, they don’t have
anything on me, just that I was seen running.”
       After Peter left the interview room, the police officer
who had previously been interviewing Rodriguez re-entered.
He told Rodriguez that he had been listening in on Rodriguez’s
conversation with Peter, and asked if Rodriguez wished to revise
his statement. Rodriguez said yes and dictated a new statement
to the officer:
       “About 8:30 or nine o’clock in the night when I was with
one or two of my homeboys, one of them pulled out a small black
gun. I held it. Found that it was a .22 caliber semiautomatic.
I gave it . . . back to my homeboy and he shot it two times in the
air. Then he put it back into his pocket.
       “It was later on when he came walking down Topaz
towards Huntington Drive when we saw the lady. The homeboys
went up to rob her and she started to scream. And they shot her.
I started to run with them. I thought that they were only going
to rob her. I got scared when they shot her.
       “When I met up with them later, I asked them why they
shot her. They told me he panicked.”



      3The murder weapon was not recovered, but forensic
analysis revealed that the victim was killed with a .22-caliber
handgun.




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       A jury convicted Rodriguez of one count of murder (§ 187,
subd. (a)), and one count of attempted robbery (§§ 211, 664).4
The jury found true an allegation that a principal was armed
during the commission of the crimes (§ 12022, subd. (a)(1)), but
found not true an allegation that Rodriguez personally used a
firearm. The trial court sentenced Rodriguez to 30 years to life
in prison.
       In 2018, the Legislature enacted Senate Bill No. 1437
(2017–2018 Reg. Sess.) (Senate Bill No. 1437), which, among
other changes, limits the circumstances in which a defendant
may be guilty of murder for participating in a felony in which a
victim was killed. Under section 189, subdivision (e), as amended
by Senate Bill No. 1437, a defendant is guilty of felony murder
only if he actually killed the victim; directly aided and abetted or
solicited the killing, or otherwise acted with the intent to kill; or
“was a major participant in the underlying felony and acted with
reckless indifference to human life.” (§ 189, subd. (e)(3).) The
legislation also enacted section 1170.95, which establishes a
procedure for vacating murder convictions for defendants who
would no longer be guilty of murder under the new law and
resentencing those who were so convicted. (Stats. 2018, ch. 1015,
§ 4, pp. 6675–6677.)
       Rodriguez filed a petition for resentencing on January 7,
2019. The trial court summarily denied the petition on two
grounds. First, the court found that Senate Bill No. 1437
was unconstitutional because it impermissibly amended two

      4Rodriguez was also convicted of two counts of assault with
a deadly weapon (§ 245, subd. (a)(1)) and one count of attempted
robbery (§§ 211, 664) on the basis of his conduct in a separate
incident. Those convictions are not at issue in this appeal.




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initiatives (see Cal. Const., art. II, § 10, subd. (c)), it violated
the victims’ right to finality in criminal cases (see Cal. Const.,
art. I, § 28, subd. (a), par. (6)) and the People’s right to due
process (see Cal. Const., art I, § 29), and it violated the
separation of powers doctrine. In addition, the court found that,
even if section 1170.95 was constitutional, Rodriguez was still
ineligible for resentencing because he actually killed the victim.

                          DISCUSSION
      A.    Procedures Under Section 1170.95
       The trial court considers a petition for resentencing
under section 1170.95 according to a three-step process. First,
the court “review[s] the petition and determine[s] if the petitioner
has made a prima facie showing that the petitioner falls within
the provisions of this section.” (§ 1170.95, subd. (c).)
       If the petition survives this first stage of review, the court
must appoint counsel if the petitioner has so requested.
(§ 1170.95, subd. (c).) The prosecutor then files a response, and
the petitioner may file a reply. “If the petitioner makes a prima
facie showing that he or she is entitled to relief, the court shall
issue an order to show cause.” (§ 1170.95, subd. (c).)
       If the court issues an order to show cause, it must hold
a hearing within 60 days to determine whether to vacate the
murder conviction. (§ 1170.95, subd. (d)(1).) At this third
and final stage of the proceeding, the prosecution has the
burden of proving beyond a reasonable doubt that the petitioner
is ineligible for resentencing. (§ 1170.95, subd. (d)(3).)




                                  6
      B.    The Trial Court Erred by Summarily Denying
            the Petition
       The trial court denied Rodriguez’s petition at the first stage
of review, without appointing the attorney or requesting briefing
from the parties, on the ground that Rodriguez was the “actual
killer” (§ 189, subd. (e)(1)) in the murder of Paz. A denial at that
stage is appropriate only if the trial court can determine from
the record of conviction that “the petitioner is ineligible for relief
as a matter of law, making all factual inferences in favor of the
petitioner.” (People v. Verdugo (2020) 44 Cal.App.5th 320, 329,
review granted Mar. 18, 2020, S260493 (Verdugo); accord, People
v. Lewis (2020) 43 Cal.App.5th 1128, 1140, fn. 10, review granted
Mar. 18, 2020, S260598.)
       In this case, the record of conviction contains conflicting
evidence regarding Rodriguez’s involvement in the killing.
Officers testified that Rodriguez told a friend that he had
personally killed the victim, but when confronted, he claimed
he did not do so. This conflict in the evidence, coupled with
the jury’s failure to find that Rodriguez used a firearm in the
offense, precludes finding as a matter of law that Rodriguez
was the actual killer. (See Pope v. County of Riverside (1963)
219 Cal.App.2d 649, 651 [“To establish a fact as a matter of law
the state of the evidence must be such that no other conclusion
is legally deducible therefrom”].) Nor are we aware of anything
in the record that establishes conclusively that Rodriguez is
ineligible because he “was a major participant in the underlying
felony and acted with reckless indifference to human life.” (§ 189,
subd. (e)(3).)
       Because the record does not show as a matter of law that
Rodriguez’s petition fails, the trial court erred by denying the




                                  7
petition at the first stage. The trial court must appoint counsel,
request briefing, and proceed to the next step of review.
(See § 1170.95, subd. (c); Verdugo, supra, 44 Cal.App.5th at
pp. 328–329, review granted Mar. 18, 2020, S260493.) If at
that point the court determines that Rodriguez has made “a
prima facie showing that he . . . is entitled to relief, the court
shall issue an order to show cause.” (§ 1170.95, subd. (c).)
At the subsequent hearing, the court would act as the trier
of fact to determine whether the prosecution has “prove[d],
beyond a reasonable doubt, that the petitioner is ineligible for
resentencing.” (§ 1170.95, subd. (d)(3).) At that point, the trial
court would need to resolve any conflicts in the evidence and
draw inferences in a way we cannot do at this stage. Nothing
in this opinion is intended to suggest to the trial court how it
should draw those inferences.

      C.    Senate Bill No. 1437 is Constitutional
       The trial court found that Senate Bill No. 1437 violates
the California Constitution because it impermissibly amended
two voter initiatives (see Cal. Const., art. II, § 10, subd. (c)),
because it violates the rights of crime victims to finality of
judgment (see Cal. Const., art. I, § 28, subd. (a), par. (6), § 29),
and because it violates the separation of powers by requiring
courts to reopen final judgments and by usurping the Governor’s
pardon and commutation power. We agree with the reasoning
of the court in People v. Lamoureux (2019) 42 Cal.App.5th 241,
which considered these same arguments and rejected them.
(Id. at pp. 250–266; see also People v. Solis (2020) 46 Cal.App.5th
762, 775–784; People v. Cruz (2020) 46 Cal.App.5th 740, 748–761;
People v. Prado (2020) 49 Cal.App.5th 480, 484–492; People v.
Superior Court (Gooden) (2019) 42 Cal.App.5th 270, 280–289.)




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                         DISPOSITION
      The trial court’s order is reversed, and the trial court
is ordered to appoint counsel to represent Rodriguez and
continue to the second stage of review under section 1170.95,
subdivision (c).
      NOT TO BE PUBLISHED.




                                          ROTHSCHILD, P. J.
We concur:




                  BENDIX, J.




                  SINANIAN, J.*




      *Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.




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