Filed 3/17/22 P. v. Rodriguez CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C093467
Plaintiff and Respondent, (Super. Ct. No. 93F07391)
v.
NIXON RICARDO RODRIGUEZ,
Defendant and Appellant.
Defendant Nixon Ricardo Rodriguez appeals the denial of his petition for
resentencing pursuant to Penal Code section 1170.95.1 He contends the trial court erred
by summarily denying his petition without issuing an order to show cause. We will
reverse and direct the trial court to issue an order to show cause.
1 Undesignated statutory references are to the Penal Code.
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FACTUAL AND PROCEDURAL BACKGROUND
A. Statement of facts
The prosecution filed a consolidated amended complaint charging defendant in
count one with murder (§ 187, subd. (a)) for the benefit of a criminal street gang
(§ 186.22, subd. (b)(1)), while armed with a firearm (§ 12022, subd. (a)(1)) and lying in
wait (§ 190.2, subd. (a)(15)); in counts two and three with attempted murder (§§ 664,
187, subd. (a)) and personally using a firearm (§ 12022.5, subd. (a)) while personally
inflicting great bodily harm (§ 12022.7) for the benefit of a criminal street gang
(§ 186.22, subd. (b)(1)); in count four with attempted murder (§§ 664, 187, subd. (a)) and
personally using a firearm (§ 12022.5, subd. (a)) for the benefit of a criminal street gang
(§ 186.22, subd. (b)(1)); and in count five with discharge of a firearm at a motor vehicle
(§ 246) while personally inflicting great bodily harm (§ 12022.7) for the benefit of a
criminal street gang (§ 186.22, subd. (b)(1)). Count one concerned the interaction
described below on September 1, 1993, that resulted in the death of a gang member.
Counts two through five deal with a separate incident that occurred on August 29, 1993.
Pursuant to a plea agreement, defendant pleaded guilty to counts one and five and
the prosecution moved to dismiss all of the other counts as well as the infliction of great
bodily harm and the criminal street gang allegations as to count five. The trial court
sentenced defendant to a term of 25 years to life on count one; two consecutive one-year
terms on the enhancements under sections 12022, subdivision (a)(1), and 186.22,
subdivision (b)(1); and five years consecutive on count five.
The prosecutor recited the factual basis for defendant’s plea on count one as
follows:
“[Defendant] was driving his car. In that car also is a right front passenger by the
name of Anthony Perez. In the rear seat was the shooter person by the name of
Christopher Jagerson. And all these individuals were members of the 47th Street
[Sureños] gang.
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“Earlier that evening they had gotten together and discussed an incident involving
30 members of their rival, the Franklin Gang[,] coming by Anthony Perez’s house, and
intimidating miss [sic] mother in that fashion.
“For that reason, they were in the neighborhood to retaliate . . . . When they
spotted the victim Manuel Esteban riding his bike on 37th Avenue and south on 28th
Street. At which point [defendant] drove after Mr. Esteban, stopped the car, confronted
him, asked him what set you’re from. Mr. Esteban responded Franklin. [Cod]efendant
Jagerson in the back seat withdrew his .22 caliber semiautomatic and shot Mr. Esteban 10
times in the back as he ran away.
“Defendant . . . then drove away from the scene with his headlights off and was
stopped I believe at the intersection of 38th Avenue and Franklin Boulevard.”
B. Petition for resentencing under section 1170.95
In 2019, defendant filed a petition under Senate Bill No. 1437 (2017-2018 Reg.
Sess.) (Senate Bill 1437) and section 1170.95 to have his murder conviction vacated and
to be resentenced. In his petition, defendant checked the boxes stating a complaint was
filed against him that allowed the prosecution to proceed under a theory of felony murder
or murder under the natural and probable circumstances doctrine, he pleaded “guilty or
no contest to 1st or 2nd degree murder in lieu of going to trial” on murder charges
because he believed he could be convicted pursuant to the felony-murder rule or the
natural and probable consequences doctrine, and he “could not now be convicted of 1st or
2nd degree murder” because of changes to section 188. The trial court appointed counsel
for defendant and the parties briefed whether defendant had stated a prima facie case for
relief under section 1170.95.
In ruling on the petition, the trial court started with an examination of the factual
basis for defendant’s plea. The trial court further provided a summary of the testimony
presented at defendant’s preliminary hearing. That testimony established officers found
the victim shot to death and .22-caliber shell casings nearby. A witness heard the
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gunshots, saw the body, and observed a red car leaving the scene with its lights off.
Shortly thereafter, officers stopped the red car driven by defendant. There were two
passengers in the car, along with a .22-caliber rifle and bullets.
Officers interviewed defendant at the scene. He admitted being a member of the
Sureños gang and that he and his passengers went to the area looking for rival gang
members. Defendant said if he saw any rival gang members, he intended to fight them.
Defendant did not indicate there had been conversations about shooting anyone, but
stated there had been discussions about “getting into it” with the rival gang. He stated he
did not intend to shoot anyone.
Defendant told officers he saw the victim, drove up to him, and made gang
statements to him. The victim moved one of his hands to his pocket when the passenger
in the backseat of defendant’s car opened fire. Defendant sped away with his headlights
off until stopped by officers.
Defendant said he recognized the victim from a prior altercation. During that
altercation, the victim was in a car with another man, Aaron Holguin. Holguin got out of
that car and put a gun to defendant’s head.
When asked if defendant knew whether anyone in his car was armed, he said,
“[W]ell, no,” with a pause. He also stated one of his passengers had a coat “with
something in it.” Defendant claimed he did not know there was going to be shooting
from his car or that there was a gun in it.
The trial court concluded defendant’s murder conviction was “not based on either
the felony murder rule or the natural and probable consequences theory.” The trial court
further concluded defendant could not show he could not be convicted of murder after the
changes made by Senate Bill 1437. The court based its conclusion on defendant’s
admission he was a gang member and he knew his passenger (the shooter) had been
initiated into the gang and needed to shoot someone to gain respect. Further, the court
noted defendant recognized the victim had been with someone who held a gun to
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defendant’s head and defendant had gone out to retaliate against members of that gang.
The trial court found “a jury could conclude, beyond a reasonable doubt, that defendant
. . . is guilty of first degree murder based on a theory of the direct aiding and abetting of a
willful, deliberate, premeditated murder.” The trial court denied the petition.
DISCUSSION
Defendant argues he presented a prima facie case for relief and the trial court erred
when it engaged in judicial factfinding at the prima facie stage of the petition process.
The Attorney General responds that the record of conviction proves defendant is
ineligible for relief as a matter of law. We agree with defendant and conclude the trial
court should have set the matter for an order to show cause hearing.
Senate Bill 1437 was enacted “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.” (Stats. 2018, ch. 1015, § 1(f).) The bill amended section
188, which defines malice, and section 189, which defines the degrees of murder, to
address felony-murder liability. (Stats. 2018, ch. 1015, §§ 2 & 3.) As relevant here,
Senate Bill 1437 also added section 1170.95, which provides a procedure for those
convicted of murder premised on either a felony-murder or natural and probable
consequences theory to petition for resentencing if they could not be convicted of first or
second degree murder because of changes to section 188 or 189 by the bill. (Stats. 2018,
ch. 1015, § 4; § 1170.95, subd. (a).)
Under section 1170.95, subdivision (c),2 the trial court must take briefing from the
parties and then determine whether “the petitioner makes a prima facie showing that the
2 After briefing concluded in this case, the Legislature enacted Senate Bill No. 775
(2021-2022 Reg. Sess.) (Stats. 2021, ch. 551) amending section 1170.95. Subdivision (c)
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petitioner is entitled to relief.” (§ 1170.95, subd. (c); People v. Lewis (2021) 11 Cal.5th
952, 961 (Lewis).) In performing this preliminary screening function, the court should
accept the petitioner’s allegations as true and “should not make credibility determinations
or engage in ‘factfinding involving the weighing of evidence or the exercise of
discretion.’ ” (Lewis, supra, at p. 974.) Courts, however, are not limited to the
allegations of the petition; rather, they may “rely on the record of conviction in
determining whether that single prima facie showing is made.” (Id. at p. 970.) Thus, if
the record of conviction establishes the petition lacks merit as a matter of law, the trial
court may deny the petition without conducting further proceedings. (Id. at p. 971 [“The
record of conviction will necessarily inform the trial court’s prima facie inquiry under
section 1170.95, allowing the court to distinguish petitions with potential merit from
those that are clearly meritless”].) If, accepting the facts asserted in the petition as true,
the petitioner would be entitled to relief because petitioner has met the requirements of
section 1170.95, subdivision (a), then the trial court shall issue an order to show cause.
(§ 1170.95, subd. (c).)
Here, defendant filed a facially sufficient petition alleging the essential facts
required for relief under section 1170.95, subdivision (a). In response, the trial court first
concluded section 1170.95 did not apply because defendant was not charged under a
theory of felony murder or the natural and probable consequences doctrine. The record,
however, reflects the complaint generically charged defendant with murder, without
specifying the theory under which the prosecution intended to proceed. It “has long been
the law in this state that an accusatory pleading charging murder need not specify degree
or the manner in which the murder was committed” (People v. Thomas (1987) 43 Cal.3d
818, 829, fn. 5), nor need it “specify the theory of murder on which the prosecution relies
now requires the court to hold a hearing to determine whether petitioner has made a
prima facie case for relief and if it declines to issue an order to show cause, it must
provide a statement fully setting forth its reasons.
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at trial.” (People v. Contreras (2013) 58 Cal.4th 123, 147.) Thus, nothing in the
complaint or the basis for the plea barred the prosecution from asserting either theory at
trial.
The trial court’s alternative basis for its decision—defendant could not
demonstrate he could not be convicted of murder after the changes brought about by
Senate Bill 1437—also does not support its denial of the petition as failing to state a
prima facie case. The record of conviction does not demonstrate defendant was ineligible
for resentencing as a matter of law. Rather, the factual basis for the plea disclosed only
that: (1) defendant was the driver of the car seeking out rival gang members; (2) when
they identified one, a person in the backseat opened fire; and (3) defendant drove away.
Defendant did not admit as part of his plea he knew his passengers were armed or that he
or they intended to kill anyone. The evidence adduced at the preliminary hearing
concerning defendant’s knowledge about whether anyone in his car was armed was
conflicting. Defendant did not admit to any discussions about killing anyone, only a
discussion about “getting into it” with rival gang members. Defendant claimed to want to
fight a rival gang member and said nothing about shooting them. In reaching the finding
“a jury could conclude, beyond a reasonable doubt, that defendant . . . is guilty of first
degree murder based on a theory of the direct aiding and abetting of a willful, deliberate,
premeditated murder,” the trial court weighed the evidence and engaged in factfinding to
resolve the ambiguities in favor of a murder conviction. While this may be an
appropriate finding to make on this evidence after the order to show cause evidentiary
hearing, the trial court was not permitted to make this finding at this prima facie stage of
the proceedings based on this record. (§ 1170.95, subd. (c).)
Because there were no undisputed facts or admissions by defendant in the record
of conviction that conclusively establish defendant was prosecuted on a ground rendering
him categorically ineligible for relief, the trial court should have accepted defendant’s
factual assertions in his petition as true, issued an order to show cause, and proceeded to
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an evidentiary hearing. (See Lewis, supra, 11 Cal.5th at p. 971 [“ ‘[a] court should not
reject the petitioner’s factual allegations on credibility grounds without first conducting
an evidentiary hearing’ ”].) On remand, we express no opinion about whether defendant
is entitled to relief following the hearing.
DISPOSITION
The trial court’s order denying the petition for resentencing is reversed. The case
is remanded for the trial court to issue an order to show cause and hold a hearing to
determine whether defendant is entitled to relief under Penal Code section 1170.95.
KRAUSE , J.
We concur:
RAYE , P. J.
BLEASE , J.
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