Filed 8/19/26 P. v. Rodriguez CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
A175830
v.
CARLOS NEGRETE RODRIGUEZ, (Solano County
Super. Ct. No. VCR220337)
Defendant and Appellant.
Carlos Negrete Rodriguez appeals 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 Rodriguez of 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.
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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).”1 (Rodriguez, supra, A170528.) Rodriguez ultimately
pled no contest to attempted murder and 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). Rodriguez
1 For ease of comprehension, and intending no disrespect, we refer to
Lisa Rodriguez by her first name.
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then aimed the rifle at Lisa and Montes, going back and forth between the
two of them. He then fired the rifle while aiming at Montes, hitting her in
the cheek.
“Montes’s testimony 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
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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.)
Original Section 1172.6 Proceedings
In 2024, Rodriguez filed his first petition for resentencing under section
1172.6. (Rodriguez, supra, A170528.) Filing in propria persona, he used the
Judicial Council section 1172.6 petition form 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 because he was
convicted as the actual attempted killer who personally discharged a firearm
and inflicted great bodily injury on Montes. (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
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that first appeal, the California Supreme Court held in People v. Patton
(2025) 17 Cal.5th 549 (Patton) that courts may rely at the prima facie stage
on unchallenged, relief-foreclosing facts in a preliminary hearing transcript
to refute conclusory, checkbox allegations in a section 1172.6 petition.
(Patton, at pp. 564–565.)
With the benefit of Patton, 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 the
preliminary 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 and given the failure to present the trial court with the
preliminary hearing transcript in the first instance, we remanded to provide
Rodriguez the opportunity to file an amended petition. (Ibid.)
Amended Section 1172.6 Proceedings
Upon remand in 2025, Rodriguez, through counsel, filed an amended
section 1172.6 petition arguing it was reasonably probable his conviction
rested on a now-invalid theory of attempted murder. Specifically, he
contended his conviction may have been based upon 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.
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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 in Rodriguez, supra, A170528—indicated that 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 conviction
permitted imputation of the intent to kill from an act of firing into a 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 cited
People v. Canizales (2019) 7 Cal.5th 591, which held the kill zone theory is
valid only where the evidence supports a finding that a defendant harbored
specific intent to kill a primary target and everyone 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.)
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Rodriguez averred 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 the rifle back
and forth between them and no motive was established for killing Montes
specifically. He acknowledged Montes testified she saw him point the rifle at
her and shoot but reiterated his assertion that her testimony was not reliable
or credible.
In response, the prosecution argued the 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 discharging the firearm
and inflicting great bodily injury. It also argued section 1172.6 relief for
attempted murder is available only to 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 her from 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 law as 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 theory of
attempted murder could have applied or was applied in this case.
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Rodriguez now appeals from the denial of his amended 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, Rodriguez received 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 expert look at medical records, which he contends would
undermine Montes’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 under section 1172.6
(previously codified as section 1170.95). (Patton, supra, 17 Cal.5th at p. 558;
People v. Strong (2022) 13 Cal.5th 698, 708 & fn. 2.) The Legislature
subsequently extended that procedure to those who were convicted of
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
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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
petition indicating, 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 evidence consistent with the Evidence
Code (§ 1172.6, subd. (d)(3)), including expert testimony. However, if a
petitioner fails to make a prima facie showing, the court denies the petition
at the prima facie stage without proceeding to an evidentiary hearing and
provides no relief. (Patton, at p. 562.)
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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 petitioner acted alone and as the direct perpetrator].)
In his letter brief, Rodriguez contends that medical records (apparently
referring to the exhibits in support of the amended section 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 claim the trajectory of the bullet
supports the argument in his petition that “the prosecution could have relied
on a now-invalid [kill zone] theory to add additional attempted murder
charges for everyone inside,” the record shows he was charged with and pled
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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 evidence may 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.
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PETROU, J.
WE CONCUR:
TUCHER, P. J.
FUJISAKI, J.
A175830 / People v. Rodriguez
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