P. v. Rodriguez

Filed 9/26/18 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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has not been certified for publication or ordered published for purposes of rule 8.1115.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.
JOE RODRIGUEZ,
Defendant and Appellant.
B287573
(Los Angeles County
Super. Ct. No. BA405944)
APPEAL from an order of the Superior Court for the
County of Los Angeles. Katherine Mader, Judge. Affirmed;
petition denied.
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 and Michael C. Keller,
Deputy Attorneys General, for Plaintiff and Respondent.
___________________________

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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 posttrial
motion for discovery pursuant to Penal Code section 1054.9,
finding that the statute did not apply to defendant, because he
was not serving a life sentence without the possibility of parole.
Defendant appeals, arguing that his sentence was the functional
equivalent of a life sentence without the possibility of parole.
Exercising our discretion to treat his appeal as a petition for writ
of mandate, we deny defendant’s request for relief.
BACKGROUND
We previously affirmed defendant’s conviction of first
degree murder (Pen. Code, § 187, subd. (a)), and two counts of
deliberate, premeditated, and willful attempted murder (§§ 187,
subd. (a), 664, subd. (a)), for which he originally 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

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for review was denied by our Supreme Court, and his petition for
writ of certiorari was denied by the U.S. Supreme Court.1
Following remittitur, defendant filed a motion for discovery
under Penal Code 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. The motion acknowledged that the statute allows
those sentenced to death or life without the possibility of parole
to seek postconviction discovery to aid them in filing a petition for
writ of habeas corpus, but argued that defendant’s sentence “is
an exaggerated sentence that does not allow [him] the
opportunity to parole and is very much equivalent to any other
inmate sentenced to death or life without parole.” The trial court
denied the motion, finding that defendant “is not serving a
sentence of life without [the possibility of] parole” which is a
“requirement for discovery pursuant to Penal Code section
1054.9.” Defendant appealed.
DISCUSSION
As an initial matter, defendant acknowledges that the
order appealed from may only be challenged by petition for writ
of mandate. (See Pen. Code, § 1054.9; In re Steele (2004) 32
Cal.4th 682, 692, fn. 2.) He asks us to exercise our discretion to
treat his appeal as a petition for writ of mandate, and to reach its
merits. (See People v. Payne (1988) 202 Cal.App.3d 933, 936.) In
the interest of judicial economy, we will reach the merits of
defendant’s appeal. (Sears, Roebuck & Co. v. National Union
1 We grant defendant’s request that we take judicial notice of
our slip opinion in his earlier appeal, remittitur, and the
amended abstract of judgment.

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Fire Ins. Co. of Pittsburgh (2005) 131 Cal.App.4th 1342, 1348-
1350.)
Penal Code section 1054.9 provides, in pertinent part, that
“[u]pon the prosecution of a postconviction writ of habeas corpus
or a motion to vacate a judgment in a case in which a sentence of
death or of life in prison without the possibility of parole has been
imposed, and on a showing that good faith efforts to obtain
discovery materials from trial counsel were made and were
unsuccessful, the court shall . . . order that the defendant be
provided reasonable access to any of the materials . . . . [¶] . . . in
the possession of the prosecution and law enforcement authorities
to which the same defendant would have been entitled at time of
trial.” (Id., subds. (a), (b).)
Defendant contends that Penal Code section 1054.9 applies
to defendants serving prison terms which are the functional
equivalent of a sentence of life without the possibility of parole,
where parole eligibility falls outside of a defendant’s natural
lifespan. In making this argument, he relies on cases considering
whether de facto life sentences for minors constitute cruel and
unusual punishment, and cases interpreting Proposition 47 to
apply to unenumerated theft offenses. (See, e.g., People v.
Caballero (2012) 55 Cal.4th 262, 268 [finding that sentencing a
juvenile offender for a nonhomicide offense to a term of years
with a parole eligibility date falling outside the offender’s natural
life expectancy constitutes cruel and unusual punishment];
People v. Martinez (2018) 4 Cal.5th 647, 657 [discussing breadth
of Prop. 47].) These cases have no application here.
The fundamental task in construing a statute is to
ascertain the intent of the legislators to effectuate the purpose of
the statute. (Day v. City of Fontana (2001) 25 Cal.4th 268, 272.)

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“If the plain language of the statute is clear and unambiguous,
[the courts’] inquiry ends, and [one] need not embark on judicial
construction.” (People v. Johnson (2002) 28 Cal.4th 240, 244.)
“In the construction of a statute . . . , the office of the Judge is
simply to ascertain and declare what is in terms or substance
contained therein, not to insert what has been omitted, or to omit
what has been inserted . . . .” (Code Civ. Proc., § 1858.)
By its plain language, Penal Code section 1054.9 applies
only to “a case in which a sentence of death or of life in prison
without the possibility of parole has been imposed . . . .” (Id.,
subd. (a).) The statute is unambiguous in limiting its application,
and under well-settled principles of statutory construction, we
may not read into the statute “de facto” or “functional equivalent”
language.
Even if we were to resort to extrinsic aids to help interpret
Penal Code section 1054.9 (which is not required, because the
statute is unambiguous), its legislative history supports our
conclusion. When Senate Bill No. 1391 (2001-2002 Reg. Sess.)
was originally introduced, proposing the creation of
section 1054.9, its discovery provisions were to be available to
anyone convicted of a felony. The Attorney General opposed the
bill on the basis that it created an unreasonable burden on law
enforcement and prosecutors to maintain files for all felons.
Therefore, the legislation was amended to narrow its scope to
apply only to inmates sentenced to life without possibility of
parole or death. (Catlin v. Superior Court (2011) 51 Cal.4th 300,
305-306 [discussing legislative history of § 1054.9].) The
Legislature intended a narrow scope; had it intended for the law
to apply to de facto life sentences, it would have so provided.

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DISPOSITION
The order is affirmed; defendant’s petition for writ of
mandate is denied.
GRIMES, J.
WE CONCUR:
RUBIN, Acting P. J.
DUNNING, J.*
* Judge of the Orange Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California
Constitution.

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