Filed 8/27/20 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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,

Plaintiff and Respondent,

v.

JOSEPH ARTHUR RODRIGUEZ,

Defendant and Appellant.

 B299824

 (Los Angeles County

 Super. Ct. No. BA127363)

 ORDER MODIFYING

 OPINION (NO CHANGE

 IN JUDGMENT)

THE COURT:

The opinion in the above-entitled matter filed on August 

26, 2020, is modified as follows:

On page 8, the following sentences and citation are deleted:

“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 
2

stage. Nothing in this opinion is intended to suggest to the 

trial court how it should draw those inferences.”

This modification does not constitute a change in the 

judgment.

____________________________________________________________

__

 ROTHSCHILD, P. J. 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. 
Filed 8/26/20 P. v. Rodriguez CA2/1 (unmodified opinion)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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,

Plaintiff and Respondent,

v.

JOSEPH ARTHUR RODRIGUEZ,

Defendant and Appellant.

 B299824

 (Los Angeles County

 Super. Ct. No. BA127363)

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.

____________________________
2

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. 

1 Unless 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.
3

“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 
4

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.”

3 The murder weapon was not recovered, but forensic 

analysis revealed that the victim was killed with a .22-caliber 

handgun.
5

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 

4 Rodriguez 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.
6

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).)
7

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 
8

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.)
9

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.