People v. Rodriguez, 031519 CAAPP2, B287573

Docket Nº:B287573
Opinion Judge:GRIMES, Acting P. J.
Party Name:THE PEOPLE, Plaintiff and Respondent, v. JOE RODRIGUEZ, Defendant and Appellant.
Attorney:Melanie K. Dorian, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Steven E. Mercer, Michael C. Keller and Noah P. Hill, Deputy Attorne...
Judge Panel:WE CONCUR: WILEY, J. RUBIN, J.
Case Date:March 15, 2019
Court:California Court of Appeals
 
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THE PEOPLE, Plaintiff and Respondent,

v.

JOE RODRIGUEZ, Defendant and Appellant.

B287573

California Court of Appeals, Second District, Eighth Division

March 15, 2019

NOT TO BE PUBLISHED

APPEAL from an order of the Superior Court for the County Ct. No. BA405944 of Los Angeles. Katherine Mader, Judge.

Melanie K. Dorian, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Steven E. Mercer, Michael C. Keller and Noah P. Hill, Deputy Attorneys General, for Plaintiff and Respondent.

GRIMES, Acting P. J.

Defendant Joe Rodriguez received a sentence of 140 years to life following his conviction of one count of murder, and two counts of attempted murder, for his participation in a gang-related shooting. (People v. Rodriguez (Oct. 20, 2016, B265581) [nonpub. opn.].) The trial court denied defendant's postconviction motion for discovery pursuant to Penal Code former section 1054.9, 1 finding that the statute did not apply to defendant, because he was not serving a life sentence without the possibility of parole. Defendant appealed, arguing that his sentence was the functional equivalent of a life sentence without the possibility of parole. In our original opinion in this case, we exercised our discretion to treat his appeal as a petition for writ of mandate, and denied defendant's request for relief, finding that former section 1054.9 did not apply to him under the plain language of the statute.

The California Supreme Court granted review and transferred the case to us with directions to vacate our decision and reconsider the case in light of Assembly Bill No. 1987 (2017-2018 Reg. Sess.). Assembly Bill No. 1987 became effective on January 1, 2019, and expands section 1054.9 to cases “involving a conviction of a serious felony or a violent felony resulting in a sentence of 15 years or more.” (Stats. 2018, ch. 482, § 2.)

We again affirm the order denying postconviction discovery, finding former section 1054.9 does not apply to defendant, and that the amendments to section 1054.9 apply prospectively.

BACKGROUND

We previously affirmed defendant's conviction of first degree murder (§ 187, subd. (a)), and two counts of deliberate, premeditated, and willful attempted murder (§§ 187, subd. (a), 664, subd. (a)), for which he received a sentence of 130 years to life in prison, consisting of 25 years to life for the murder count, doubled due to a strike prior, plus 25 years for firearm and gang enhancements. He also received two consecutive 25-year-to-life terms for the attempted murder counts, plus one 5-year enhancement under section 667, subdivision (a). We modified defendant's sentence, after finding that the abstract of judgment did not properly reflect the imposition of the five-year section 667, subdivision (a) enhancement for one of the attempted murder counts, and that the enhancement was erroneously not applied to the remaining counts for which defendant also received indeterminate sentences, which increased defendant's sentence to 140 years to life. (People v. Rodriguez, supra, B265581.) Defendant's petition for review was denied by our Supreme Court, and his petition for writ of certiorari was denied by the U.S. Supreme Court.2

Following remittitur, defendant filed a motion for discovery under former section 1054.9 in the trial court, “in anticipation of filing a petition for a writ of habeas corpus, ” seeking evidence in the possession of the prosecuting attorney, such as trial exhibits, forensic evidence, and photographs, among other evidence...

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