Filed 10/27/22 P. v. Rodriguez CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E077794
v. (Super. Ct. No. FSB053198)
ALFRED RAY RODRIGUEZ, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Bryan Foster,
Judge. Affirmed.
Ronda G. Norris, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Charles C. Ragland , Assistant Attorney General, Charles C. Ragland, Arlene A.
Sevidal, Lynne G. McGinnis and James H. Flaherty III, Deputy Attorneys General, for
Plaintiff and Respondent.
1 I.
INTRODUCTION
Defendant and appellant Alfred Ray Rodriguez (Rodriguez) appeals the trial
court’s summary denial of his petition for resentencing pursuant to Penal Code section 1 1170.95. He argues the trial court erred in denying his petition without issuing an order
to show cause and holding an evidentiary hearing because it engaged in impermissible
fact-finding. The record of conviction shows Rodriguez is ineligible for resentencing as a
matter of law. We therefore affirm the trial court’s order.
II. 2 FACTUAL AND PROCEDURAL BACKGROUND
Tina Lopez testified that she had spent the night of November 17, 2005, with Jerry
Ramirez (Jerry), her boyfriend, at a motel. Tina telephoned her father, Benjamin, and
asked for a ride. Edward Vincent Hernandez (Vinny) and Rodriguez, her cousins, picked
her and Jerry up. No one seemed tense or angry.
1 That section has since been renumbered as Penal Code section 1172.6. (Stats. 2022, ch. 58, § 10.) However, because that change was nonsubstantive and the parties cite to Penal Code section 1170.95, we will cite to Penal Code section 1170.95 for ease of reference. All further statutory references are to the Penal Code. 2 The factual background is taken from this court’s nonpublished opinion in defendant Rodriguez and codefendant Benjamin Hernandez’s (Benjamin) prior appeal, case No. E046636, which is part of the record on appeal in this case. (People v. Rodriguez et al. (Sept. 28, 2010, E046636) [nonpub. opn.] (Rodriguez I).)
2 The group went to the home of Tina’s aunt, where Jerry’s brother, Eric Ramirez,
lived. Eric testified he had been keeping a .22-caliber semiautomatic and a .22-caliber
revolver, as well as a .25-caliber clip, for Jerry. Eric retrieved the guns and gave them to
Jerry; Jerry unloaded the guns and gave them and the clip to Vinny, who owned one of
the guns. Tina’s aunt testified that about a year earlier, there had been problems between
Vinny and Jerry.
The group then proceeded to a house on East Pumalo Street (the Pumalo house)
where other extended family members lived. Tina’s mother, Stella Lopez; Tina’s aunt
and uncle, Ruth and Edward Hernandez, Sr. (Edward); and Benjamin were all at the
Pumalo house. Tina bickered with Benjamin while Rodriguez, Vinny, and Jerry were
outside. Tina heard “loudness” in the backyard, and Benjamin went outside. Benjamin
told Tina to stay in the house and told Stella to keep her there.
Curtis Hawkins, who lived behind the Pumalo house, heard a commotion.
Through his bathroom window, he saw several men, including all four defendants,
surrounding Jerry on the ground near the carport. Jerry was trying to escape but the
others were blocking him. Hawkins heard Benjamin say, “You been fucking with my
family. I’m going to kill you.” Benjamin hit Jerry with a pointed edge shovel about 20
times in the head and torso while Jerry cried and pleaded for him to stop. Hawkins saw a
pool of blood form around Jerry’s head, and he heard Benjamin say, “Hurry up. Get my
gun.” Hawkins also heard someone say to get blankets. Vinny and Rodriguez rolled
Jerry’s motionless body up in blankets. Vinny backed a car up the driveway into the
3 carport, and Vinny and Rodriguez loaded Jerry into the trunk and drove off. Hawkins
then saw Edward put some dirt over the blood and hose down the driveway and a car in
the carport. A few minutes later, Hawkins heard Benjamin say to his daughter and
another woman, “The same thing may happen to you.” Hawkins did not contact the
police because he feared for his own safety.
Another next-door neighbor, Vivian Jackson, heard screams. Jackson looked 3 through the chain-link fence to see Vinny beat a man on the ground with a shovel at least
five times, while three or four other men beat, stomped, and kicked the victim. She could
see blood on the ground. She heard the man she identified as Vinny say, “I told you not
to play with me,” and she heard the victim screaming “no.” Jackson then walked away.
Fifteen or 20 minutes later, she saw Edward hosing down what looked like blood from
the carport area.
Alberta Hechtl, a security guard at a credit union adjacent to the Pumalo house,
heard yelling, and although her view was partially obstructed, she saw an object like a
shovel being driven up and down while a man screamed. She heard a woman yelling
“leave him alone,” and a man reply, “Get in the house.”
3 Although Jackson testified that the man with the shovel was Vinny, she had identified a photograph of Benjamin as the man who had used the shovel.
4 Tina told a detective and testified at the preliminary hearing that Benjamin came
back inside and yelled to Vinny and Rodriguez to “[g]et him out of here” or to “[g]et rid
of him.” She then saw Vinny and Rodriguez push Jerry into the car, and she saw Vinny
driving the car away.
Deputy Mark Addy of the San Bernardino County Sheriff’s Department responded
to a report of a domestic disturbance at the Pumalo house. He observed that Benjamin
had what appeared to be fresh blood on his T-shirt and a fresh laceration above his eye.
The deputy also saw someone washing a car in the carport.
Jerry’s body was discovered in a ravine in Waterman Canyon on November 20,
2005. He had suffered numerous blunt and sharp force injuries, including defensive
wounds on his arms, but the cause of death was seven close-range gunshot wounds to the
head. Some of the blunt-force injuries on his back and buttocks area were consistent with
kicking. The seven bullets were all .25-caliber and could only have been fired from a
.25-caliber weapon.
Neither a gun nor the shovel was ever found. 4 The jury found Rodriguez guilty of second degree murder. (§ 187, subd. (a).)
The trial court sentenced Rodriguez to 15 years to life in prison.
4 The jury also found Benjamin guilty of second degree murder. (§ 187, subd. (a).) The jury further found that Benjamin had used a deadly weapon, a shovel, in the commission of the crime (§ 12022, subd. (b)(1)).
5 Rodriguez subsequently appealed, arguing the evidence was insufficient to show 5 he aided and abetted a codefendant in killing the victim. We rejected Rodriguez’s
contentions and affirmed the judgment, concluding that the evidence overwhelmingly
supported the jury’s determination that Rodriguez was guilty of second degree murder.
(See Rodriguez I, supra, E046636.)
On November 4, 2019, Rodriguez filed a second petition for resentencing under
Senate Bill No. 1437 and section 1170.95, asking the court to vacate his murder 6 conviction and to resentence him. In the petition, Rodriguez declared that (1) a
“complaint, information, or indictment was filed against [him] that allowed the
prosecution to proceed under a theory of felony murder or murder under the natural and
probable consequences doctrine”; (2) he “was convicted of 1st or 2nd degree murder
pursuant to the felony murder rule or the natural and probable consequences doctrine”;
5 Rodriguez, Benjamin, and codefendants Vinny and Edward were all charged with first degree murder and conspiracy to commit murder with various weapon use allegations. Vinny’s trial was severed from that of the others. The jury was unable to reach a verdict on the murder charge as to Edward and a mistrial was declared as to him.
Vinny and Edward were subsequently tried together. Vinny was found guilty of first degree murder and conspiracy to commit murder (§§ 187, subd. (a), 182, subd. (a)(1)), and the jury found true firearm use allegations as to him under section 12022.53, subdivisions (b), (c), and (d). The jury was again unable to reach a verdict as to the murder charge against Edward, and another mistrial was declared. Edward thereafter entered a plea of guilty to acting as an accessory to a felony (§ 32), and the murder charge against him was dismissed. 6 Rodriguez’s first petition was stricken as unconstitutional.
6 and (3) he “could not now be convicted of 1st or 2nd degree murder because of changes
made to Penal Code § § 188 and 189, effective January 1, 2019.”
The People filed an informal response on December 23, 2019, requesting the trial
court take judicial notice of Rodriguez’s record of conviction, including the instructions
provided to the jury. The People argued that the petition should be denied because
Rodriguez was not eligible for relief under section 1170.95 and that the jury instructions
demonstrated Rodriguez’s murder conviction “was not based upon felony murder or
natural and probable consequences[.]”
Counsel was appointed for Rodriguez, and a hearing on the second petition was
held on August 6, 2021. After hearing argument, the trial court found Rodriguez had not 7 made a prima facie showing entitling him to relief and denied the petition. The court
noted Rodriguez’s conviction had not been premised on the felony murder rule and
concluded that there was “no question in everyone’s mind they meant to kill the
individual and they were all participants in the activity.” Defendant timely appealed.
III.
DISCUSSION
Rodriguez contends the trial court erred in summarily denying his “facially
sufficient” petition for resentencing without issuing an order to show cause and
conducting an evidentiary hearing because the court engaged in impermissible fact-
7 The trial court incorrectly stated, “I’m going to strike the petition,” rather than stating “deny” the petition.
7 finding. He believes that although his jury was not instructed on a felony murder theory
or under the natural and probable consequences doctrine, under the instructions given,
Rodriguez could have been convicted on an imputed malice theory to prove the second
degree murder conviction. We conclude that the trial court did not err in denying the
petition after finding Rodriguez is not eligible for relief under section 1170.95.
Effective January 1, 2019, the Legislature passed Senate Bill No. 1437 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.’” (People v.
Gentile (2020) 10 Cal.5th 830, 842 (Gentile); see Stats. 2018, ch. 1015, § 1, subd. (f).)
The criminal liability of direct aiders and abettors did not change under Senate Bill No.
1437. (People v. Offley (2020) 48 Cal.App.5th 588, 595-596.)
Senate Bill No. 1437 eliminated the natural and probable consequences doctrine as
a basis for finding a defendant guilty of murder and significantly limited the scope of the
felony-murder rule. (People v. Lewis (2021) 11 Cal.5th 952, 957 (Lewis); Gentile, supra,
10 Cal.5th at pp. 842-843, 847-848.) As relevant here, under the natural and probable
consequences doctrine, a person who knowingly aided and abetted a crime, the natural
and probable consequence of which was murder, could be convicted of not only the target
crime but also of the resulting murder, irrespective of whether he or she harbored malice
aforethought. (Gentile, supra, at pp. 843-845; People v. Offley, supra, 48 Cal.App.5th at
8 p. 595.) However, Senate Bill No. 1437 amended section 188 to provide that “[e]xcept as
stated in subdivision (e) of [s]ection 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); Stats. 2018, ch.
1015, § 2.) “Senate Bill No. 1437 changed the circumstances under which a person could
be convicted of murder without a showing of malice, but it did not exclude from liability
persons convicted of murder for acting with implied malice.” (People v. Soto (2020) 51
Cal.App.5th 1043, 1057 (Soto), abrogated on another ground by Lewis, supra, 11 Cal.5th
at p. 967.)
Senate Bill No. 1437 also “added section 1170.95 to provide a procedure for those
convicted of felony murder or murder under the natural and probable consequences
doctrine to seek relief.” (Gentile, supra, 10 Cal.5th at p. 843; see Lewis, supra, 11
Cal.5th at p. 959.) Pursuant to section 1170.95, an offender must file a petition in the
sentencing court declaring that: “(1) A complaint, information, or indictment was filed
against the petitioner that allowed the prosecution to proceed under a theory of felony
murder or murder under the natural and probable consequences doctrine . . . [;] [¶] (2)
The petitioner was convicted of murder, attempted murder, or manslaughter following a
trial or accepted a plea offer in lieu of a trial at which the petitioner could have been
convicted of murder or attempted murder [;] [¶] [and] (3) The petitioner could not
presently be convicted of murder or attempted murder because of changes to [s]ection
9 188 or 189 made effective January 1, 2019.” (§ 1170.95, subds. (a)(1)-(3); see § 1170.95
subd. (b)(1)(A).)
The trial court then determines whether the petition is facially sufficient under
section 1170.95, subdivision (b). (Lewis, supra, 11 Cal.5th at p. 960.) If the section
1170.95 petition contains all the required information, including a declaration by the
petitioner that he or she was convicted of murder and could not now be convicted of
murder because of changes to section 188 or 189 (§ 1170.95, subd. (b)(1)(A)), the court
then must appoint counsel to represent the petitioner upon his or her request pursuant to
section 1170.95, subdivision (c). (Lewis, supra, at pp. 957, 959-960, 966.) Further, upon
the filing of a facially sufficient petition, the court must direct the prosecutor to file a
response to the petition and permit the petitioner to file a reply, and the court must
determine whether the petitioner has made a prima facie showing that he or she is entitled
to relief. (See § 1170.95, subd. (c); Lewis, supra, at pp. 964, 966.)
In determining whether the petitioner has made a prima facie showing, “‘“the
court takes petitioner’s factual allegations as true and makes a preliminary assessment
regarding whether the petitioner would be entitled to relief if his or her factual allegations
were proved. If so, the court must issue an order to show cause.”’ [Citations.] ‘[A] court
should not reject the petitioner’s factual allegations on credibility grounds without first
conducting an evidentiary hearing.’ [Citations.]” (Lewis, supra, 11 Cal.5th at p. 971.)
“In reviewing any part of the record of conviction at this preliminary juncture, a trial
court should not engage in ‘factfinding involving the weighing of evidence or the
10 exercise of discretion.’” (Id. at p. 972.) “[T]he trial court should not decide unresolved
factual issues that involve credibility determinations or weighing of evidence. Rather, it
should decide such issues only after issuing an order to show cause and holding an
evidentiary hearing.” (People v. Duchine (2021) 60 Cal.App.5th 798, 811-812, fn.
omitted.)
“Nevertheless, the court may appropriately deny a petition at the prima facie stage
if the petitioner is ineligible for relief as a matter of law.” (People v. Harden (2022) 76
Cal.App.5th 262, 270 (Harden).) “‘“[I]f the record, including the court’s own
documents, ‘contain[s] facts refuting the allegations made in the petition,’ then ‘the court
is justified in making a credibility determination adverse to the petitioner,’”’ thereby
deeming him or her ineligible. (Lewis, supra, 11 Cal.5th at p. 971.) For example, if the
record shows that the jury was not instructed on either the natural and probable
consequences or felony-murder doctrines, then the petitioner is ineligible for relief as a
matter of law. [Citation.] A finding of ineligibility at the prima facie stage may also be
based on a legal holding from a prior appellate opinion arising from the conviction.
[Citation.]” (People v. Harden, supra, at p. 270, citing People v. Daniel (2020) 57
Cal.App.5th 666, 677 & Lewis, supra, at p. 972.)
“Appellate opinions . . . are generally considered to be part of the record of
conviction.” (Lewis, supra, 11 Cal.5th at p. 972.) “[T]here is no categorical bar to
consulting the record of conviction at the prima facie stage.” (Id. at p. 972, fn. 6.) “In
sum, the parties can, and should, use the record of conviction to aid the trial court in
11 reliably assessing whether a petitioner has made a prima facie case for relief under
[section 1170.95,] subdivision (c).” (Id. at p. 972, fn. omitted.) Furthermore, the court
may rely on jury instructions, which are part of the record of conviction, to make the
prima facie determination because the instructions “given at a petitioner’s trial may
provide ‘readily ascertainable facts from the record’ that refute the petitioner’s showing,
and reliance on them to make the eligibility or entitlement determinations may not
amount to ‘factfinding involving the weighing of evidence or the exercise of discretion.’”
(Soto, supra, 51 Cal.App.5th at p. 1055.)
In October 2021, Senate Bill No. 775 was enacted and amended section 1170.95,
effective on January 1, 2022. (2020-2021 Reg. Sess.; Stats. 2021, ch. 551, § 1.) As a
result of the amendments, section 1170.95 clarified that “person convicted of felony
murder or murder under the natural and probable consequences doctrine or other theory
under which malice is imputed to a person based solely on that person’s participation in
a crime, attempted murder under the natural and probable consequences doctrine, or
manslaughter,” may file a petition to have that conviction vacated under certain
circumstances. (§ 1170.95, subd. (a), italics added.)
If the petitioner makes a prima facie showing under section 1170.95, subdivision
(c), the court must issue an order to show cause and hold a hearing “to determine whether
to vacate the murder . . . conviction and to recall the sentence and resentence the
petitioner on any remaining counts.” (§ 1170.95, subd. (d)(1).) If a hearing is held, “the
burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the
12 petitioner is guilty of murder or attempted murder under California law as amended by
the changes to [s]ection 188 or 189 made effective January 1, 2019.” (§ 1170.95, subd.
(d)(3).) The prosecutor and the petitioner may offer new or additional evidence to meet
their respective burdens at the hearing stage. The admission of evidence at the hearing is
governed by the Evidence Code. However, the court also “may consider evidence
previously admitted at any prior hearing or trial that is admissible under current law,
including witness testimony, stipulated evidence, and matters judicially noticed,” as well
as the “procedural history of the case recited in any prior appellate opinion.” (§ 1170.95,
subd. (d)(3).) Hearsay evidence that was admitted in a preliminary hearing pursuant to
subdivision (b) of section 872 is inadmissible at the evidentiary hearing, unless made
admissible by another exception to the hearsay rule. (§ 1170.95, subd. (d)(3).)
The prima facie determination under section 1170.95 is a question of law, and the
court may deny a petition at the prima facie stage if the petitioner is ineligible for
resentencing as a matter of law. (Lewis, supra, 11 Cal.5th at p. 966.) “We independently
review a trial court’s determination on whether a petitioner has made a prima facie
showing. [Citation.]” (Harden, supra, 76 Cal.App.5th at p. 270.)
In this case, the jury was not instructed on felony murder and the natural and
probable consequences doctrine, or any other theory of liability that would have
permitted the jury to impute malice to Rodriguez. Rather the instructions were limited to
direct aiding and abetting, express and implied malice, and premeditation and
deliberation. Specifically, as pertinent here, the jury was instructed pursuant to
13 CALCRIM No. 400 on general aiding and abetting principles as follows: “A person may
be guilty of a crime in two ways. One, he or she may have directly committed the crime.
I will call that person the perpetrator. Two, he or she may have aided and abetted a
perpetrator who directly committed the crime. A person is equally guilty of the crime
whether he or she committed it personally or aided and abetted the perpetrator who
committed it.” The jury was also given CALCRIM No. 401, the direct aiding and
abetting instruction, which provided in pertinent part: “To prove that a defendant is
guilty of a crime based on aiding and abetting that crime, the People must prove that: [¶]
1. The perpetrator committed the crime; [¶] 2. The defendant knew that the perpetrator
intended to commit the crime; [¶] 3. Before or during the commission of the crime, the
defendant intended to aid and abet the perpetrator in committing the crime; [¶] AND [¶]
4. The defendant’s words or conduct did in fact aid and abet the perpetrator’s commission
of the crime. [¶] Someone aids and abets a crime if he or she knows of the perpetrator’s
unlawful purpose and he or she specifically intends to, and does in fact, aid, facilitate,
promote, encourage, or instigate the perpetrator’s commission of that crime.” Notably,
the trial court did not give either CALCRIM No. 402 [Natural and Probable
Consequences Doctrine (Target and Non-Target Offenses Charged)] or CALCRIM No.
403 [Natural and Probable Consequences (Only Non-Target Offenses Charged)], both of
which would have allowed the jury to convict Rodriguez if jurors found that the murder
was the natural and probable consequences of another target crime. At trial, the
prosecution argued two theories of murder liability, namely that Rodriguez (and his
14 codefendants) committed murder as either direct perpetrators or direct aiders and
abettors.
The instruction on aiding and abetting in particular required that the aider and
abettor “know[] of the perpetrator’s unlawful purpose” and “specifically intend[] to, and
[did] in fact, aid, facilitate, promote, encourage, or instigate the perpetrator’s commission
of that crime.” The jury was further instructed that, if it found a defendant guilty of
murder, then it had to determine whether the murder was of the first or second degree.
Specifically, the jury was instructed pursuant to CALCRIM No. 520 on express and
implied malice in as follows: “The defendants are charged in Count one with murder.
[¶] To prove that a defendant is guilty of this crime, the People must prove that: [¶] 1.
The defendant committed an act that caused the death of another person; [¶] AND [¶]
2. When the defendant acted, he had a state of mind called malice aforethought. [¶]
There are two kinds of malice aforethought, express malice and implied malice. Proof of
either is sufficient to establish the state of mind required for murder. [¶] The defendant
acted with express malice if he unlawfully intended to kill. [¶] The defendant acted with
implied malice if: [¶] 1. He intentionally committed an act; [¶] 2. The natural
consequences of the act were dangerous to human life; [¶] 3. At the time he acted, he
knew his act was dangerous to human life; [¶] AND [¶] 4. He deliberately acted with
conscious disregard for human life. [¶] Malice aforethought does not require hatred or ill
will toward the victim. It is a mental state that must be formed before the act that caused
death is committed. It does not require deliberation or the passage of any particular
15 period of time. The jury found Rodriguez guilty of second degree murder. In other
words, the jury rejected defense’s theory of the case that he did not intend to commit
murder and found that Rodriguez committed the murder, as either a direct perpetrator or a
direct aider and abettor.
Although CALCRIM No. 520 used the term “‘“natural and probable
consequences,”’” which could be similar to the natural and probable consequences
doctrine, these are two “distinctly different concepts.” (Soto, supra, 51 Cal.App.5th at p.
1056; accord, People v. Chiu (2014) 59 Cal.4th 155, 158, abrogated on another ground by
Sen. Bill No. 1437 (2017-2018 Reg. Sess.).) The “natural consequences” language in
instructions “does not transform [a petitioner’s] conviction into one for murder under the
natural and probable consequences doctrine within the meaning of section 1170.95.”
(Soto, supra, at p. 1059.)
A direct aider and abettor to murder must at least share the mens rea of the actual
perpetrator, i.e., express or implied malice. (Soto, supra, 51 Cal.App.5th at p. 1057.)
“For implied malice murder, [the requisite] intent is that the perpetrator ‘“knows that his
conduct endangers the life of another and . . . acts with conscious disregard for life.”’
[Citation.] The ‘physical component’ required for implied malice murder ‘is satisfied by
the performance of “an act, the natural consequences of which are dangerous to life.”’”
(Id. at p. 1058.) In contrast, an accomplice whose liability for murder is premised on the
natural and probable consequences doctrine “need only intend to aid a different, less
serious ‘target’ crime,” the natural and probable consequence of which is murder. (Id. at
16 p. 1057.) Here, the jury was not instructed on the natural and probable consequence
doctrine or any target crime upon which murder based on a natural and probable
consequences theory could be predicated. (See People v. Daniel, supra, 57 Cal.App.5th
at p. 677 [defendant ineligible for relief where jury was not instructed on felony murder
or natural and probable consequences doctrine]; People v. Mancilla (2021) 67
Cal.App.5th 854, 866-867 [conviction based on actual malice under provocative act
theory].) Rodriguez was therefore necessarily convicted under a still-valid theory. (See
People v. Powell (2021) 63 Cal.App.5th 689, 714 [rejecting the defendant’s contention
that direct aiding and abetting implied malice murder is an invalid legal theory].)
Rodriguez does not suggest his jury was instructed on the natural and probable
consequences doctrine or the felony-murder rule, and the record in his direct appeal
shows the jury was not instructed on those theories of liability. Therefore, Rodriguez is
ineligible for relief under section 1170.95 as a matter of law.
Rodriguez argues he is eligible for relief under section 1170.95 because the trial
court instructed the jury on aiding and abetting with CALCRIM No. 400, which was 8 amended in 2011 after his trial. He contends the “equally guilty” language was
confusing and misleading because it suggested the jurors could (or even should) impute
Vinny’s or Benjamin’s mental state to Rodriguez without considering Rodriguez’s mental
state. The possibility that Rodriguez could have been convicted at trial under an imputed
8 In April 2010, the Judicial Council revised CALCRIM No. 400 to remove the word “equally” from the phrase “equally guilty.” (People v. Johnson (2016) 62 Cal.4th 600, 640 & fn. 5.)
17 malice theory which is now invalid under section 188 was foreclosed by the trial court’s
additional instruction on aiding and abetting, CALCRIM No. 401. That instruction, as
noted above, explained that an aider and abettor had to know the unlawful purpose of the
perpetrator, intend to encourage or facilitate the commission of the crime, and by act or
advice, aid or encourage the commission of the crime.” Where, as here, the trial court
instructs the jury with CALCRIM No. 401, there is no reasonable likelihood the jurors
would have understood the equally guilty language [in CALCRIM former No. 400] to
allow them to base defendant’s liability for first degree murder on the mental state of the
actual shooter, rather than on defendant’s own mental state in aiding and abetting the
killing. (People v. Johnson (2016) 62 Cal.4th 600, 641; see id. at pp. 640-641 [because
the trial court “instructed the jury with CALCRIM No. 401, which sets out the
requirements for establishing aider and abettor liability,” the jury “was informed that for
them to find defendant guilty of murder as an aider and abettor the prosecution must
prove that [the] defendant knew [the perpetrator] intended to kill [the victim], that he
intended to aid and abet [the perpetrator] in committing the killing, and that he did in fact
aid him in that killing, which would have cleared up any ambiguity arguably presented by
CALCRIM former No. 400’s reference to principals being ‘equally guilty’”].)
Because Rodriguez was not convicted of felony murder or murder under a natural
and probable consequences or other imputed malice theory, he is ineligible for
resentencing as a matter of law. We therefore conclude the trial court did not err in
denying Rodriguez’s petition for resentencing.
18 IV.
DISPOSITION
The order denying the petition for resentencing is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON Acting P. J.
We concur:
FIELDS J.
RAPHAEL J.