Filed 6/21/23 P. v. Rodriguez CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinio n has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE,

Plaintiff and Respondent,

v.

JOSE LUIS R ODRIGU EZ

,

D e fendant and Appellant. B 32 5369

Los Angeles County Sup er . Ct. No. P A 057565

- 01

APPEAL from an order of the Superior Court of Los Angeles Count, Hayden Zacky , Judge. Affirmed

.
John F. Schuck, under appointment by the Court of Appeal,
f or Def endant a nd Appellant.

No appearance for Plaintiff and Respondent.

——————————2 Pursuant to People v. Delgadillo (2022) 14 Cal.5 th 216 , w e review this appeal from the denial of a petition for recall of

sentence brought under Penal Code former sectio n 1 170.95

. 1 We
affirm the trial court’s order.

P ROCEDURAL BACKGROUND

On April 27, 2009, a jury found appellant Jose Rodriguez guilty of willful, deliberate, premeditated attempted murder in
violation of Penal Code sections 664 and 187 , subdivision (a)
(coun ts 1 and 2) 2 ; pos session of a firearm by a felon in violation of section 12021, subdivision (a)(1) (count 3); and assault with a
semi

- automatic firearm in violation of section 254, subdivision (b) (counts 5 and 6). Appellant was convicted of shooting two men outside t he apartment building where hi s moth e r lived. The jury also found true f irearm use and discharge allegations, great bodily injury allegations, and gang enhancements

. In
addition to t he jury verdicts, a ppellant pleaded guilty to resisting

an executive o ff

icer in violation of section 69 (count 4). On July 23, 2009, appella nt was sentence d to life in prison with the possibility of parole plus 50 years on the attempted murder charges with the firearm enhancements . He was
sentenced to a consec uti ve three

- year t erm on th e resisting charge. T h e sen t ences on counts 3, 5, and 6 were st a yed. Appellant was the sole defendant charged in the amended

1 Effective June 30, 2022, former section 1170.9 5 was

renu mbe r ed section 1172.6 with no change in text

. (Stats. 2022, ch. 5 8, § 10

. ) In this opinion we u se the new code section.

2 Further undesignated statutory ref e rences are to the Penal Code.3

information

. This court affirmed the convictions on appeal. ( People v. Rodrigue z ( Jan

. 24, 2011
, B 21836 1 ) [n onpu b. o pn.].) On February 22, 2022, appe l lant filed a petition for resentencing under section 117 2

. 6

. The court appointed counsel on appellant’s behalf. The People filed a respons e. On October 5, 2022, the trial court did not issue an order to
show cause

. Ins t ead, it found appellant ineligible for rel ief because 1) appellant was prosecuted as the sole actual perpetrator who acted with malice and with the intent to k ill during the co m mission of the crimes; and 2) the jury was not instructed on the n atural an d pr obable consequences doctrine or aiding and abet tin g. Appellant filed a timely notice of appeal. We appointed counsel to rep resent ap pellant on appeal. On April 20, 2023

, counsel filed a brief pursuant to People v. Delgadillo

. The brief raise s no issu es

. Counsel adv ises that appellant was sent the re cor d on appeal as well as a copy of the
brief

. Cou nse l t old ap pellant he may file a supplemental brief within 30 days raising any issue he wishes us to consider.
On April 20, 2023, this court sen t appellan t a notice that a brief raising no issues had been fil ed on h is behalf. We advised

appe lla nt he had 30 days within which to submit a supplemental brief or letter stating any ground for an appeal he wishes this court to consider. Appellant was a dvised tha t i f he did not file a supplemental brief

, h is appe al may be dismissed as abandoned.4 O n M ay 5, 202 3, appellant filed a supplemental brief raising several issues: the prosecutor and his defense lawyer “railroaded” him; he acted in self

- defense whe n he wa s c onf ronted by two gang members; he had no intent to kil l and did not plan
the shoot ing “like th ey claimed I did”; and he did not act for the benefit of a gang.

DISCUSSION
First, counsel has asked us to conduct an independent
review of the record

. We are n ot required to do so in the context of an appeal fr om an order denying a p etition for res entencing
and we decline to do so . ( People v. Delgadillo

, supra , 14 Cal.5th
at p. 226.) Next, appellant’s issues are not properly before our court.
Petiti ons for re sen tencing under section 1172.6 carry out the
inten t o f Senate Bill No. 1437 (2017

– 2018 Reg. Sess.) whi ch was
“to ensu re that m urder liability is not imposed on a person who is not the actual killer, did no t act with the intent to kill, or was no t a major par ticipant in the underlying felony who acted with

re ckless indifference to human life.” (Stats. 2018 , ch. 1015, § 1

, subd. ( f); People v. Lewis (2021) 11 Cal.5th 952, 967.) Petitions
under section 1172. 6, then, address convictions where a
def endant was no t the killer, but was held vicariously liable on

on e of several theories of liability identified in the statute. T he petition to rec all sentence under section 1172.6 is not another opport unity to challenge the original judgment on other groun d s.5 DISPOS IT I ON

The order denying the petition for recall of sentence is
affirmed.

NOT TO BE PUBLISHE D I N THE OFFICIAL REPORTS

STRATTON, P. J.

We concur:

G RI MES , J.

VIRAMONTES , J.