People v. Rodriguez CA2/2 ( 2021 )

Filed 1/29/21 P. v. Rodriguez CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO
THE PEOPLE, B305739
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA024452)
v.
VIDAL RODRIGUEZ,
Defendant and Appellant.
THE COURT:
On August 12, 1991, a jury found Vidal Rodriguez
(Rodriguez) and codefendant Adam Riojas (Riojas)1 guilty of
murder in the second degree. (Pen. Code, § 187, subd. (a).)2 The
trial court sentenced Riojas to a term of 17 years to life in state
prison and Rodriguez to a term of 15 years to life in state prison.
1 Riojas is not a party to this appeal.
2 All further statutory references are to the Penal Code
unless otherwise indicated.
The Court of Appeal affirmed Rodriguez’s conviction in People v.
Riojas (July 13, 1993, B063404) [nonpub. opn.].
On February 21, 2019, Rodriguez filed a petition for
resentencing under section 1170.95.3 On February 3, 2020, the
trial court issued a written decision denying Rodriguez’s petition
based on its conclusion that he was ineligible for relief. The trial
court offered the following explanation: “[Rodriguez] was
convicted of murder, but the record of conviction reflects that the
3 Senate Bill No. 1437 (2017-2018 Reg. Sess.), which went
into effect on January 1, 2019 (see Stats. 2018, ch. 1015, § 4),
added section 1170.95 and amended sections 188 and 189. “As
amended, section 188 limits a finding of malice: ‘Except as stated
in subdivision (e) of Section 189, in order to be convicted of
murder, a principal in a crime shall act with malice aforethought.
Malice shall not be imputed to a person based solely on his or her
participation in a crime.’ (§ 188, subd. (a)(3).) As added by
Senate Bill [No.] 1437, subdivision (c) of section 189 reads: ‘A
participant in the perpetration or attempted perpetration of a
felony listed in subdivision (a) . . . in which a death occurs is
liable for murder only if one of the following is proven: [¶]
‘(1) The person was the actual killer. [¶] ‘(2) The person was not
the actual killer, but, with the intent to kill, aided, abetted,
counseled, commanded, induced, solicited, requested, or assisted
the actual killer in the commission of murder in the first degree.
[¶] ‘(3) The person was a major participant in the underlying
felony and acted with reckless indifference to human life[.]”
(People v. Ramirez (2019) 41 Cal.App.5th 923, 928 (Ramirez).)
Section 1170.95 permits a defendant to file a petition with the
court that sentenced the defendant for resentencing if he was
convicted under a theory of felony murder or murder under the
natural and probable consequences doctrine, and if he could not
have been convicted under the changes to sections 188 and 189
made effective January 1, 2019. (Ramirez, supra, 41 Cal.App.5th
at p. 929.)
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petitioner was not convicted under a theory of felony-murder of
any degree, or a theory of natural and probable consequences.
The record of conviction in this case established that [Rodriguez]
was a direct aider and abettor to the murder charged in this
case.”
On March 30, 2020, Rodriguez filed an appeal challenging
the denial of his section 1170.95 petition.
DISCUSSION
Appointed counsel filed a brief raising no issues for us to
consider. Because this is an appeal from the denial of
postconviction relief, we follow the procedures in People v.
Serrano (2012) 211 Cal.App.4th 496. As established by People v.
Cole (2020) 52 Cal.App.5th 1023, 1039–1040, review granted
October 14, 2020, S264278, our sole task is to review the
arguments in appellant’s supplemental brief.
He argues that his section 1170.95 petition should have
been granted because of two events that occurred during his trial
in 1991: (1) the trial court erred by not instructing the jury on a
natural and probable consequences theory of liability; and (2) the
testimony of an identification witness for the state was
discredited in its entirety because he lied about every person in a
six-pack of photos also being present in a line-up. These
arguments are not cognizable on appeal because they do not
relate to the February 3, 2020, order denying appellant’s petition
to withdraw his sentence under Senate Bill No. 1393 (2017-2018
Reg. Sess.) and to suppress evidence. We conclude that appellant
has not established grounds for reversal.
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DISPOSITION
The February 3, 2020, order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
____________________________________________________________
LUI, P. J ASHMANN-GERST, J. HOFFSTADT, J.
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