Filed 4/23/21 P. v. Duarte-Rodriguez CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT*

APPEAL from a judgment of the Superior Court of Stanislaus County. Scott T. Steffen, Judge.

Rebecca P. Jones, under appointment by the Court of Appeal, for Defendant and Appellant.

Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.

-ooOoo-

Appointed counsel for appellant Jose Manuel Duarte-Rodriguez asked this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Duarte-Rodriguez was advised of his right to file a supplemental brief within 30 days of the date of filing of the opening brief. This court did not receive a supplemental brief from him. Finding no arguable error that would result in a disposition more favorable to Duarte-Rodriguez, we affirm.

BACKGROUND

On June 4, 2007, Duarte-Rodriguez was sentenced to a prison term of 81 years to life for murder. Duarte-Rodriguez was convicted as a direct aider and abettor for the 1998 murder of Manuel Arciga Orneles.

On December 6, 2018, Duarte-Rodriguez filed a petition for resentencing pursuant to Penal Code section 1170.95. In his petition, Duarte-Rodriguez alleged he was convicted of first or second degree murder pursuant to the felony murder rule or the natural and probable consequences doctrine, and due to subsequent changes in the law following the enactment of Senate Bill No. 1437 (2017-2018 Reg. Sess.), he could not now be convicted of murder.

On January 24, 2019, the trial court found Duarte-Rodriguez had made a prima facie case for relief, issued an order to show cause, appointed counsel for Duarte-Rodriguez, and set a briefing schedule for the parties.

On March 13, 2020, following the submission of written briefs by the parties, defense counsel advised the court that Duarte-Rodriguez had not been tried under the felony murder rule or the natural and probable consequences doctrine. Rather, Duarte-Rodriguez had been convicted of first degree murder as a direct aider and abettor. The People agreed that Duarte-Rodriguez was not entitled to relief under section 1170.95. The trial court denied Duarte-Rodriguez’s petition for resentencing.

On April 29, 2020, Duarte-Rodriguez filed a timely notice of appeal.

DISCUSSION

After reviewing the record, we find no arguable error on appeal that would result in a disposition more favorable to Duarte-Rodriguez.[1] The jury was not instructed on a natural and probable consequences or felony-murder theory of liability, and Duarte-Rodriguez therefore could not demonstrate eligibility for relief under section 1170.95 as a matter of law.

On August 18, 2020, this court received a letter from Duarte-Rodriguez through his appointed appellate counsel. Duarte-Rodriguez requested his appointed appellate counsel be relieved and that new counsel be appointed. According to Duarte-Rodriguez, appellate counsel failed to make arguments pertaining to the statements of witnesses who testified at his preliminary hearing. The issues Duarte-Rodriguez raises pertain to whether he was present at the time of the murder. As this is not a sufficient basis for postconviction relief under Senate Bill No. 1437 (2017-2018 Reg. Sess.), there is no justification for the appointment of substitute counsel. Duarte-Rodriguez’s request is therefore denied.

DISPOSITION

Duarte-Rodriguez’s request for appointment of substitute counsel is denied. The judgment is affirmed.

* Before Smith, Acting P.J., Snauffer, J. and De Santos, J.

[1] The procedures applicable following an appeal from the denial of postjudgment relief is currently pending before our Supreme Court. (See People v. Cole (2020) 52 Cal.App.5th 1023, 1039-1040, review granted Oct. 14, 2020, S264278.)