P. v. Rodriguez CA1/3 filed 8/19/26

Filed 8/19/26 P. v. Rodriguez CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,
Plaintiff and Respondent,
v.
CARLOS NEGRETE RODRIGUEZ,
Defendant and Appellant.

A175830

(Solano County
Super. Ct. No. VCR220337)

Carlos Negrete Rodriguezappeals from a postconviction order denying his renewed petition for resentencing under Penal Code section 1172.6 (all further statutory references are to this code).His appointed appellate counsel filed a brief pursuant to People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo)and requested that we conduct an independent review of the record. Counsel informed Rodriguezof his right to file a supplemental brief, and Rodriguez timely filed one. Having examined the entire record and supplemental brief, we conclude there are no issues that require further briefing and affirm the order.
Factual and Procedural Background
This is the second appeal in this case. The historical and procedural facts were set forth in our prior opinion, which we incorporate by reference. (People v. Rodriguez (Mar. 12, 2025, A170528) [nonpub. opn.] (Rodriguez).)
General Background
“In 2014, Rodriguez was involved in a shooting that occurred at a small party at a house belonging to Elba Montes. After a night of drinking, Rodriguez got into an argument with those present, left, came back with a rifle, and fired the rifle at Montes’s face.Among those also present were Rodriguez’s infant child, the mother of his child, and Lisa Rodriguez (no relation to appellant).” (Rodriguez,supra,A170528.)Rodriguez ultimately pled no contest to attempted murderand five other felonies, for which he was sentenced to a total term of 32 years in prison. (Ibid.)
Preliminary Hearing Testimony
“The pertinent uncontroverted testimony at the preliminary hearing was as follows.
“Lisa testified the group was drinking beer one night in Montes’s bedroom until the morning hours. Around 5:00 a.m., Rodriguez got into an argument with the mother of his child and left the house. He returned 20 minutes later and stood outside a window looking in on the group. He was angry and yelling about how he wanted his son. After one of the partygoers told him to go home, Rodriguez again left.
“Rodriguez later returned to the same window, this time carrying a rifle. While still standing outside the window, he said he was not afraid to shoot and fired a shot into the air (apparently outside the house).Rodriguezthen aimed the rifle at Lisa and Montes, going back and forth between the two of them. Hethen fired the rifle while aiming at Montes, hitting her in the cheek.
“Montes’stestimony was consistent with Lisa’s testimony as to the series of events leading up to the shooting. Montes stated the last thing she remembered was the rifle being fired at her and then screaming. She had extensive injuries to her face, requiring numerous surgeries and significant rehabilitation.
“The cross-examination of Lisa and Montes largely sought to establish that everyone at the party was drinking and there may have been a sharp object in the room that could have been used to threaten Rodriguez (though no evidence of any threat was presented). There was no testimony that anyone other than Rodriguez was the perpetrator and no evidence of any accomplices.” (Rodriguez,supra,A170528.)
Charges and Plea Proceedings
“In 2015, Rodriguez was charged by second amended information with one count of attempted willful, deliberate, premeditated murder (§§187, 664); one count of mayhem (§203); three counts of assault with a firearm (§245, subd.(a)(2)); and one count of shooting at an inhabited dwelling (§246).
“As to the attempted murder count, the information alleged Rodriguez personally and intentionally discharged a firearm (§12022.53, subd. (c)), personally used a firearm (§§ 12022.5, subd. (a)(1), 12022.53, subd.(b)), personally and intentionally discharged a firearm, which proximately caused great bodily injury (§12022.53, subd. (d)), and personally inflicted great bodily injury upon the victim (§12022.7, subd. (a)).
“In 2016, pursuant to a negotiated plea deal, the prosecution struck from the information that the attempted murder was willful, deliberate, and premeditated. Rodriguez pled no contest to all counts in the information so amended. He also admitted two enhancements to the attempted murder count: (1) that he personally and intentionally discharged a firearm within the meaning of section 12022.53, subdivision (c); and (2) that he personally inflicted great bodily injury upon the victim within the meaning of section 12022.7, subdivision (a). The remaining enhancement allegations were dismissed.
“Rodriguez stipulated that the preliminary hearing transcript provided the factual basis for his plea.The transcript provided the sole factual basis for the plea.
“In April 2016, consistent with the negotiated plea deal, the trial court sentenced Rodriguez to a total term of 32 years in prison.” (Rodriguez,supra,A170528.)
OriginalSection 1172.6 Proceedings
In 2024, Rodriguezfiled his first petition for resentencing under section 1172.6. (Rodriguez, supra,A170528.)Filing in propria persona, he used the Judicial Council section 1172.6 petitionform and checked the box indicating he could not presently be convicted of attempted murder because of changes made to sections 188 and 189, effective January 1, 2019,but offered no specific facts in support.(Rodriguez, A170528.)Counsel was appointed but filed no supplemental petition. (Ibid.)
The prosecution filed a response asserting Rodriguez failed to make a prima facie showing that he was eligible for resentencing becausehe was convicted as the actual attempted killer who personally discharged a firearm and inflicted great bodily injury onMontes. (Rodriguez, supra,A170528.)
The trial court denied the original petition at the prima facie stage, and Rodriguez appealed.(Rodriguez,supra,A170528.)During the pendency of that first appeal, the California Supreme Court held inPeople v. Patton(2025) 17 Cal.5th 549 (Patton) thatcourts may relyat the prima facie stage on unchallenged, relief-foreclosing facts in a preliminaryhearing transcript to refute conclusory, checkbox allegations in asection 1172.6 petition. (Patton, at pp.564–565.)
With the benefit ofPatton, we affirmed the court’s denial of the original section 1172.6 petition. (Rodriguez,supra,A170528.)Although the preliminary hearing transcript was not provided to or considered by the trial court, it was part of the record on appeal. (Ibid.)After exercising our discretion to independently review it, we concluded: “Undisputed facts in thepreliminary hearing transcript show Rodriguez was the sole perpetrator, acting without any accomplice. No testimony at the hearing, including on cross-examination, even suggested that anyone other than Rodriguez was the direct perpetrator of the attempted murder of Montes. It therefore refutes the conclusory allegations in the resentencing petition that he was convicted on a now-invalid theory of attempted murder.”(Ibid.) However, in an abundance of caution andgiven the failure to present the trial court with the preliminary hearing transcript in the first instance, we remanded to provideRodriguez the opportunity to file an amended petition. (Ibid.)
Amended Section 1172.6 Proceedings
Upon remand in 2025, Rodriguez, through counsel, filed anamendedsection 1172.6 petition arguing it was reasonably probable his conviction rested on a now-invalid theory of attempted murder. Specifically, hecontended his conviction may have been basedupon either (1)a theory where he was not the actual perpetrator or (2)an imputed malice theory of attempted murder under the “kill zone” theory.
As to the first basis, Rodriguez asserted Lisa and Montes’ testimony at the preliminary hearing, that he was the shooter, was not credible and that their testimony was not corroborated by forensic or physical evidence. Lisa stated they were drinking on the night of the shooting, she did not clearly remember everything that happened, and she had looked away when Montes was shot. Likewise, Montes could not clearly describe what had occurred. Medical records admitted at the preliminary hearing—which were not part of the record on appeal inRodriguez,supra,A170528—indicatedthat when asked by medical staff, Montes vaguely remembered some events leading up to the shooting but could not recall being shot or the specific circumstances of the shooting. The records also showed Montes tested positive for drugs and alcohol, which Rodriguez argued undermined the reliability of her testimony, as well as her and Lisa’s credibility as they both denied illegal drugs were used at the party.
Rodriguez further argued that, even if he were the direct perpetrator, the“kill zone” theory of attempted murder at the time of his 2016 convictionpermitted imputation of the intent to kill from an act of firing intoa crowded area. He asserted that, although he pled guilty to just one count of attempted murder, “the prosecution could have relied on a now-invalid theory to add additional attempted murder charges for everyone inside” the room. He citedPeople v. Canizales (2019) 7 Cal.5th 591, whichheld the kill zone theory is valid only wherethe evidence supports a finding that a defendant harbored specific intent to kill a primary target andeveryone else in a “zone of fatal harm” created by the defendant’s use of force, and the alleged attempted murder victim who was not the primary target was located in that zone of harm. (Id. at p. 607.)
Rodriguezaverred the evidence left open the possibility his conviction did not rest upon specific intent to kill Montes but rather upon merely firing into a crowded room with a general intent to kill anyone present, noting Lisa and Montes were in close proximity when the shooter pointed therifle back and forth between them and no motive was established for killing Montes specifically. He acknowledged Montes testified she sawhimpoint the rifle at her and shoot but reiterated his assertion that hertestimony was not reliable or credible.
In response, the prosecution arguedthe evidence plainly showed Rodriguez was the direct perpetrator given the unrefuted preliminary hearing testimony that he was the person who fired the rifle at Montes and his admission to the enhancements for personally dischargingthe firearm and inflicting great bodily injury.It also argued section 1172.6 relieffor attempted murder is availableonlyto those convicted under the natural and probable consequences doctrine, which applies to accomplices, foreclosing his argument that he could be eligible for relief based on his kill zone theory. In any event,the evidence showed Rodriguez had intent to kill Montes by pointing and shooting the rifle at herfrom a close distance.
On December 30, 2025, after holding a hearing at which the parties generally reiterated the arguments described above, the court denied the amended section 1172.6 petition at the prima facie stage. The court concluded Rodriguez was ineligible for resentencing as a matter of lawas he was the actual perpetrator.The court found no facts were proffered (beyond speculation) that he was not the shooter, stating the preliminary hearing transcript and his admission to personally discharging a firearm supported that finding.Also, based on the record, no alternate or invalid theoryof attempted murder could have applied or was applied in this case.
Rodrigueznow appeals from the denial of hisamended petition for resentencing. His appointed appellate counsel filed a brief under Delgadillo, supra, 14 Cal.5th 216, which established the procedural framework for appellate courts to follow when counsel finds no arguable issues in a section 1172.6 appeal. Under that framework, Rodriguezreceived notice that he had a right to file a supplemental brief or his appeal could be dismissed. (See Delgadillo, at pp.231–232.)Rodriguez filed a letter brief requesting to have a ballistics expertlook at medical records, which he contends would undermineMontes’s testimony that he aimed the rifle at her.
Discussion
Effective January 1, 2019, the Legislature passed Senate Bill No. 1437 (2017–2018 Reg. Sess.), making ameliorative changes to California’s homicide law and creating a procedure for those convicted of murder under the former law to seek relief by filing a petition for resentencing undersection 1172.6 (previously codified assection 1170.95). (Patton, supra, 17 Cal.5th at p. 558; People v. Strong (2022) 13 Cal.5th 698, 708 & fn. 2.) The Legislature subsequentlyextended that procedure to those who were convictedof attempted murder under the natural and probable consequences doctrine. (Patton, at p. 558; §1172.6, subd. (a).)
Such persons may seek relief under section 1172.6 when three conditions apply. (§1172.6, subd. (a).) “As relevant here, given the nature of [Rodriguez’s] prosecution, those enumerated conditions are: First, the charging document allowed the prosecution to ‘proceed under a theory of . . . attempted murder under the natural and probable consequences doctrine.’ (Id.,subd.(a)(1).) Second, petitioner . . . accepted a plea offer in lieu of trial on [an attempted murder] charge. (Id., subd.(a)(2).) And third, ‘petitioner could not be presently convicted’ of the charge, given the changes to homicide law effective in 2019. (Id., subd.(a)(3).)” (Patton, supra, 17 Cal.5th at p. 558.)
If a petitioner seeking relief under section 1172.6 files a facially valid petitionindicating, among other criteria, he or she meets the three requirements in subdivision (a), the parties have an opportunity to submit briefing before the court holds a hearing to determine whether the petitioner has made a prima facie case for relief. (§1172.6, subds. (b) & (c).)
At the prima facie stage, a court may look at the record of conviction—including a preliminary hearing transcript preceding a guilty plea—to “distinguish petitions with potential merit from those that are clearly meritless.” (People v. Lewis (2021) 11 Cal.5th 952, 971; Patton, supra, 17 Cal.5th at p. 568.) The court should not engage in factfinding at the prima facie stage; rather, it “ ‘ “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.” ’ ” (Lewis,at p. 971; see id. at pp. 971–972.)
Only if a petitioner makes a valid prima facie showing does the court issue an order to show cause and proceed to an evidentiary hearing on the ultimate question of whether petitioner should be resentenced. (Patton, supra, 17 Cal.5th at p. 559.) At that hearing, the prosecution and the petitioner may offer new or additional evidenceconsistent with the Evidence Code (§1172.6, subd. (d)(3)), includingexpert testimony. However, if a petitioner failsto make a prima facie showing, the courtdenies the petition at the prima facie stage without proceeding to an evidentiary hearing and provides no relief. (Patton,at p.562.)
Here,Rodriguez failed to make a prima facie case for relief as “the undisputed facts in the record of conviction establish that [Rodriguez] was convicted on the theory that he was the direct and sole perpetrator of the attempted murder.” (See People v. Muhammad (2024) 107 Cal.App.5th 268, 279 (Muhammad) [petitioner who pled no contest to attempted murder failed to make prima facie showing where record of conviction did not indicate any accomplice or confederate that would be necessary for natural and probable consequences theory and preliminary hearing transcript supported only a theory that petitioneracted alone and as the direct perpetrator].)
In his letter brief, Rodriguezcontendsthat medical records (apparently referring to the exhibits in support of the amendedsection 1172.6 petition)regarding bullet fragments in Montes’s skull represent new evidence that does not align with Montes’s testimony that he aimed directly at her before shooting. He asserts that a bullet aimed at Montes would have gone in a different trajectory through the back of the head rather than fragmenting and exiting at an angle and requests a ballistics expert.This is pure speculation based on his own beliefs regarding ballistics that, standing alone and wholly unsupported by any evidence identifying any potential shooter other than Rodriguez, does not establish a prima facie case for relief.(See Patton, supra, 17 Cal.5th at p.567[“[A]bsent specific facts, no . . . dispute [as to the basis of the conviction] arises . . . from mere latent, speculative possibilities; that is, a hypothetical alternate direct perpetrator cannot be conjured from thin air or a legal conclusion.”].)
Insofar as Rodriguez attempts to claimthe trajectory of the bullet supports the argument in his petition that “the prosecution could have relied on a now-invalid [killzone] theory to add additional attempted murder charges for everyone inside,” the record shows he was charged with and pled no contest to a single count of attempted murder against just one victim (Montes), which, as we have explained, was premised on the still-valid theory that he was the direct perpetrator. (See Muhammad, supra, 107 Cal.App.5th at p. 277 [“[A] defendant convicted by plea cannot show eligibility for relief by asserting the People could have prosecuted him based on invalid theories when the record conclusively establishes that at the time of the plea, the People were operating under only one theory of the defendant’s guilt, and that theory is still valid under current law.”].)
Finally, to the extent Rodriguez seeks to argue a ballistics report would show he did not aim at Montes directly or intend to kill her,it rests on a misapprehension of the “limited”inquiry at the prima facie stage, which does not involve factfinding or new evidence. (See People v. Lewis, supra, 11 Cal.5th at pp. 971–972.) As we have explained, only if a petitioner makes a valid prima facie showing does the court proceed to hold an evidentiary hearing where new or additional evidencemay be presented. (Patton, supra, 17 Cal.5th at p. 559; §1172.6, subd. (d)(3).)Because Rodriguez has failed to make a prima facie showing that he was convicted on a now-invalid theory of attempted murder(see Muhammad, supra, 107 Cal.App.5th at p. 279), he is not entitled to an evidentiary hearing where any new evidence, such as a ballistics report, could potentially be presented.
Finally, having exercised our discretion to perform an independent review of the record, we have not found any other arguable issues.(See Delgadillo, supra, 14 Cal.5th at p.232.)
Disposition
The order denying Rodriguez’s amended section 1172.6 resentencing petition is affirmed.

Petrou, J.

WE CONCUR:

Tucher, P. J.

Fujisaki, J.

A175830 / People v. Rodriguez