THE PEOPLE, Plaintiff and Respondent, v. DAVID DANIEL RODRIGUEZ, Defendant and Appellant.
B303099
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SEVEN
Filed 12/7/20
CERTIFIED FOR PUBLICATION; (Los Angeles County Super. Ct. No. KA071098)
Eric R. Larson, 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.
On January 7, 2019 Rodriguez petitioned to vacate his murder conviction and for resentencing under
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.
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
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.
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 (
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
2. Rodriguez‘s Petition for Resentencing
Rodriguez, representing himself, petitioned to vacate his murder conviction pursuant to
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 the testimony of Lopez‘s sister concerning the location of Rodriguez, Delgado and the unidentified third man supported a finding Rodriguez was the actual shooter, the People argued, “The record here contains
Rodriguez‘s counsel responded, emphasizing that neither Rodriguez nor Delgado had been charged as the actual shooter and that the jury found them not guilty of first degree murder, suggesting the jury did not believe they had gone to Lopez‘s apartment with the intent to commit murder.
The court issued an order to show cause and set a formal hearing for November 27, 2019.
3. The OSC Hearing and the Court‘s Ruling
At the outset of the hearing on its order to show cause, after stating it had read the parties’ papers and was familiar with the circumstances leading to the verdicts at Rodriguez‘s trial, the court invited argument “as to whether or not there is a theory of liability in the record absent additional evidence that could support the defendant‘s liability for second degree murder.” The court added, “Before I do that, I think, it‘s uncontested that there is no evidence in the record that could link Mr. Rodriguez to being the actual killer, in other words, the actual shooter. The evidence is insufficient to support that. . . . The issue is whether or not Mr. Rodriguez as a non-shooter can still be held criminally [liable] for the killing of Mr. Frankie Lopez other than on a theory of natural and probable consequences.”
After hearing from Rodriguez‘s counsel, the court made the following observations, “I think the issue that we are now left to resolve is whether or not there is another theory of liability other than natural and probable consequences that could still support beyond a reasonable doubt, which is the standard, liability for
Relying on Delgado‘s statement to police, the court explained its understanding of why, given the ongoing dispute between Rodriguez and Coronado, Lopez and not Coronado was selected as the target. Then, after acknowledging there was an unidentified third person who participated at the outset of the episode, the court stated, “There is absolutely no evidence in the record to support an argument that that person was involved in any way in the killing of Frankie Lopez. But we do know there were at least two people involved, Mr. Rodriguez being one of them.” The court then reasoned one of the two men was the shooter; the second was a direct aider and abettor who had shouted, “Get him, Dog,” proving express malice.
During the prosecutor‘s comments, which included the argument Rodriguez could be found guilty of first degree murder under a lying-in-wait theory and implied malice murder, the court stated, “I know that the law requires, for purposes of this hearing, [the court] to review the record and determine by way of evidence whether or not there is evidence in the record beyond a reasonable doubt that could support a murder conviction regardless of whether or not it was first or second degree.” After both counsel addressed whether the People were entitled to
Reiterating the significance of the “Get him, Dog” comment, which proved express malice by the speaker, the court said its tentative finding, subject to final comments by counsel, was “to find there 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.” Rodriguez‘s counsel attempted to persuade the court to change its view, arguing, if there was insufficient evidence Rodriguez was the shooter and insufficient evidence to know what role the unidentified third person played, then the evidence was insufficient to prove it was Rodriguez who said, “Get him, Dog.”
The court was unconvinced: “Although it was mentioned in the trial evidence about the third person, there is zero evidence that I have seen that implicated this third person, the person unidentified, as doing anything other than simply being present at the time the shots were fired, which means the evidence points to Mr. Rodriguez being at least at the very minimum a direct aider and abettor because those words can be attributed to him if he is the non-shooter. If there [are] only two people involved, they were both equally liable for the express malice murder of Frankie Lopez. So that‘s my finding. I think it‘s supported in the record. I think the analysis is appropriate. It is not overreaching in any respect. So the [petition] for resentencing under 1170.95 is respectfully denied.”
DISCUSSION
1. Senate Bill 1437 and the Section 1170.95 Petition Procedure
Senate Bill 1437, effective January 1, 2019, significantly modified the law relating to accomplice liability for murder. In its uncodified findings and declarations the Legislature stated, “It is necessary to amend the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.” (Stats. 2018, ch. 1015, § 1, subd. (f).) The Legislature also declared, “Except as stated in subdivision (e) of Section 189 of the Penal Code [relating to first degree felony murder], a conviction for murder requires that a person act with malice aforethought. A person‘s culpability for murder must be premised upon that person‘s own actions and subjective mens rea.” (Id., § 1, subd. (g).)
The Legislature accomplished its goal by adding subdivision (a)(3) to
Senate Bill 1437 also authorized, through new
Once the order to show cause issues, the court must hold a hearing to determine whether to vacate the murder conviction and to recall the sentence and resentence the petitioner on any remaining counts. (
2. Standard of Review
As discussed,
As appellate courts generally do, we apply a deferential standard of review in determining whether the evidence supports any of the superior court‘s factual findings. (Lopez, supra, 56 Cal.App.5th at p. 953 [substantial evidence standard of review applies to findings of fact in postjudgment orders including those made pursuant to
Rodriguez urges us to hold either the Chiu/Guiton harmless error standard or the independent factfinder/trial standard must be applied to determine ineligibility for resentencing under
a. General principles of statutory interpretation
“Our primary task ‘in interpreting a statute is to determine the Legislature‘s intent, giving effect to the law‘s purpose. [Citation.] We consider first the words of a statute, as the most reliable indicator of legislative intent.‘” (California Building Industry Assn. v. State Water Resources Control Bd. (2018) 4 Cal.5th 1032, 1041.) “’ “We interpret relevant terms in light of their ordinary meaning, while also taking account of any related provisions and the overall structure of the statutory scheme to determine what interpretation best advances the Legislature‘s underlying purpose.” ’ [Citation.] ‘If we find the statutory language ambiguous or subject to more than one interpretation, we may look to extrinsic aids, including legislative history or purpose to inform our views.‘” (In re A.N. (2020) 9 Cal.5th 343, 351-352; accord, Los Angeles County Bd. of Supervisors v. Superior Court (2016) 2 Cal.5th 282, 293.)
Rodriguez‘s argument in favor of the Chiu/Guiton harmless error standard is contrary to three related aspects of
We similarly reject the third approach, the appellate review standard, which asks whether a reasonable jury could find the petitioner could be convicted of murder under a still-valid theory, and which Division One of this court adopted in People v. Duke (2020) 55 Cal.App.5th 113, 123-124 (Duke).
At the threshold, because
As discussed, concerned about the disparity between individual culpability and punishment then existing under the natural and probable consequences doctrine and the felony murder rule, the Legislature with Senate Bill 1437 reformed aider and abettor liability in homicide cases to more equitably sentence both past and future offenders in relation to their own actions and subjective mentes reae. (See Stats. 2018, ch. 1015, § 1, subds. (f), (g).)7 That legislative goal is best effectuated by
To be sure,
This overly literal analysis is not compelled by the statute‘s language and is directly at odds with the Legislature‘s stated purpose in enacting Senate Bill 1437. Use of a conditional verb in
Moreover, the prosecutor must prove ineligibility beyond a reasonable doubt, which is not only the standard of proof considered by the independent factfinder in a criminal trial but also, as the Supreme Court held in People v. Frierson (2017) 4 Cal.5th 225 less than two months before the introduction of Senate Bill 1437, the burden a prosecutor must carry in proving ineligibility for resentencing under Proposition 36, the Three Strikes Reform Act of 2012.8 It is unlikely the Legislature
The improbability of such a legislative intent is underscored by subdivision (d)(3)‘s provision authorizing both parties to introduce new or additional evidence at the hearing to determine whether the petitioner is ineligible for resentencing. How is the superior court to evaluate that additional evidence if not as an independent factfinder? It would be pointless for the court‘s role in this situation simply to be deciding whether a jury could credit a new witness‘s testimony and thus could conclude the petitioner had acted with express malice.9
Indeed, the understanding it would be the prosecution‘s burden to prove to an independent factfinder that the petitioner was guilty of murder was a primary concern of the California District Attorneys Association (Association), which opposed Senate Bill 1437. As set forth in identical language in the Senate
The Association‘s fear a jury might be required was unfounded. (See People v. Anthony (2019) 32 Cal.App.5th 1102, 1156-1157 [no Sixth Amendment right to a jury trial in proceedings under
The court of appeal in Lopez, supra, 56 Cal.App.5th 936 reached the same conclusion as we do, using a slightly different analysis. The question, the Lopez court posited, is “how confident must the trial court be in the state‘s ability to prove the petitioner‘s guilt of murder under current law in order to find petitioner ineligible for relief. Must the prosecutor persuade the
In sum, we agree with Rodriguez and the Lopez court of appeal that it is the court‘s responsibility to act as independent factfinder and determine whether the evidence establishes a petitioner would be guilty of murder under amended
4. The Superior Court Applied an Incorrect Standard in Finding Rodriguez Ineligible for Resentencing
Rather than find beyond a reasonable doubt that Rodriguez had directly aided and abetted the murder of Lopez, the superior court here determined only that “there is sufficient evidence in the record to support an express malice murder theory.” Accordingly, the matter must be remanded for a new hearing for
Although in his brief the Attorney General agreed the prosecution‘s burden was to prove beyond a reasonable doubt that Rodriguez was criminally liable for murder under the amendments enacted by Senate Bill 1437, citing two statements from the November 27, 2019 hearing, he argued the superior court correctly applied this standard of proof. We do not share the Attorney General‘s generous interpretation of the court‘s language.
As the Attorney General points out, the court observed that the issue to be decided was whether a theory of liability existed other than natural and probable consequences “that could still support beyond a reasonable doubt” a conviction for second degree murder, and subsequently stated it was required to review the record to determine “whether or not there is evidence in the
Because the superior court applied an incorrect standard of proof, its order denying Rodriguez‘s petition for resentencing must be reversed and the matter remanded for a new hearing. Whether the record establishes Rodriguez‘s ineligibility for resentencing beyond a reasonable doubt is to be decided in the first instance by the superior court acting as factfinder and using the proper standard of proof.
The order denying Rodriguez‘s petition for resentencing is reversed, and the matter remanded for a new evidentiary hearing applying the correct standard of proof as set forth in this opinion.
PERLUSS, P. J.
We concur:
SEGAL, J.
DILLON, J.*