People v. Rodriguez CA4/2 ( 2014 )

Filed 12/4/14 P. v. Rodriguez CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 TWO
THE PEOPLE,
Plaintiff and Respondent, E061139
v. (Super.Ct.No. FCH00354)
JOSE OSCAR RODRIGUEZ, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Michael A. Smith,
Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice
pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Neil Auwarter, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
1
In 1994, a jury convicted defendant and appellant Jose Oscar Rodriguez of two
counts of attempted murder under Penal Code1 sections 664 and 187, subdivision (a); one
count of shooting at an occupied motor vehicle under section 246; and one count of being
an active participant in a criminal street gang under section 186.22, subdivision (a). The
court imposed an aggregate prison term of 34 years to life, including two consecutive
terms of 15 years to life for the attempted murder counts.
On February 19, 2014, defendant filed an in propria persona petition entitled
“Petition for Recall of Sentence/Waiver of Personal Appearance [¶] Penal Code
§1170.126.” The body of the petition, however, stated that defendant sought parole
under section 3051, which authorizes early parole for life inmates whose crimes were
committed prior to age 18.2 On May 2, 2014, the trial court denied the petition. It stated
that defendant’s commitment was for serious felonies, making him ineligible for
resentencing under section 1170.126.
On May 12, 2014, defendant filed a timely notice of appeal.
FACTUAL AND PROCEDURAL HISTORY
The facts of defendant’s underlying offenses are not provided in the record.
DISCUSSION
After defendant appealed, and upon his request, this court appointed counsel to
represent him. Counsel has filed a brief under the authority of People v. Wende (1979)
1 All further statutory references are to the Penal Code unless otherwise indicated.
2 Defendant was 17 years, 8 months old when he committed his offenses.
2
25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 setting forth a statement of
the case, a summary of the facts, and potential arguable issues, and requesting this court
to undertake a review of the entire record.
We offered defendant an opportunity to file a personal supplemental brief, but he
has not done so. Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we
have conducted an independent review of the record and find no arguable issues.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J.
We concur:
McKINSTER
Acting P. J.
CODRINGTON
J.
3