Filed 10/22/26 P. v. Rodriguez CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B344499
(Super. Ct. No. GA071678)
Plaintiff and Respondent, (Los Angeles County)
v.
DANIEL RODRIGUEZ, et al.
Defendants and Appellants.
Daniel Rodriguez was convicted, by guilty plea, of the
attempted willful, deliberate, premeditated murder of Miguel
Alvarez during a drive-by shooting in which he was the driver.
(Pen. Code, §§ 664/187, subd. (a).)1 He was sentenced in 2011 to
29 years in state prison. In 2022, appellant filed a petition for
resentencing. (§ 1172.6.) After appointing counsel and holding
an evidentiary hearing, the trial court denied the petition.
Appellant contends the trial court erred because there is no
All statutory references are to the Penal Code unless
1
otherwise stated.
substantial evidence he acted with the intent to kill Alvarez. We
affirm with respect to appellant Rodriguez.
Rodriguez’s co-defendant, Iban Manuel Ma Gurrola,
was a passenger in the SUV driven by Rodriguez. He personally
fired a handgun at the victim. Gurrola pleaded no contest to the
attempted murder of Alvarez, and admitted the firearm use and
gang allegations. (§ 12022.53, subd. (c)-(e); § 186.22, subd.
(b)(1)(c).) The trial court sentenced Gurrola to a total term in
state prison of 35 years.
In 2023, Gurrola filed a petition for resentencing
under section 1172.6. After appointment of counsel, the trial
court held an evidentiary hearing at which it considered the
record of Gurrola’s conviction, including the transcript of his
preliminary hearing. The trial court found Gurrola was a direct
perpetrator who acted with an intent to kill or, at a minimum,
aided and abetted the third co-defendant, Steven Aguilar, with
the intent to kill. It denied Gurrola’s petition.
We appointed counsel to represent Gurrola on appeal.
After an examination of the record, counsel filed an opening brief
raising no issues and requested that we follow the procedures set
forth in People v. Delgadillo (2022) 14 Cal.5th 216. On November
12, 2025, we directed Gurrola’s counsel to send the record of the
appeal and a copy of appellant’s brief to Gurrola immediately and
to notify him of his right to submit a supplemental brief or letter
stating any grounds for an appeal, or contentions or arguments
he wished us to consider. Appellant Gurrola has not filed a
supplemental brief or letter. Accordingly, we dismiss appellant
Gurrola’s appeal as abandoned.
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Facts
Erick Rodriguez (no relation to appellant) was
standing on a sidewalk in Glendale, talking with some friends
when a burgundy SUV drove slowly toward them. There was a
driveway, leading to an apartment building, directly to the right
where Erick was standing. Appellant stopped his SUV in the
middle of the street, about five feet away from Erick. Erick saw
that, in addition to the driver, there was a man in the front
passenger seat and a man in the rear passenger seat. Both
passenger side windows were open.
The front seat passenger, appellant Gurrola, asked
Erick if he was “Tuna Fish,” referring to the Toonerville gang.
Erick answered, “No.” Gurrola asked Erick to lift his shirt and
he complied, revealing that he had no tattoos. Appellant drove
the SUV past Erick and his friends as Gurrola and Aguilar yelled
derogatory things about the Toonerville gang.
Within moments, appellant stopped the SUV and
drove it in reverse until it was in front of the driveway. Both
Gurrola and Aguilar began shooting down that driveway. Erick
did not see who they were shooting at; he didn’t look. Aguilar,
the rear seat passenger, got out of the SUV, yelled,
“motherfucker,” and fired some more shots in the same direction.
After Gurrola yelled, “come on, let’s go,” Aguilar got back into the
SUV. Appellant drove away. Erick heard appellant say to
Gurrola, “ ‘Get the witnesses.’ ” No additional shots were fired.
Erick estimated seven or eight shots were fired.
Another witness, Maria Trejo, said there were three or four shots.
The entire incident lasted only seconds.
Miguel Alvarez was visiting with some friends in an
apartment at the end of the driveway. When he saw the SUV
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stop at the driveway, he began walking toward it. He heard
occupants of the SUV saying something, but he could not hear
what they were saying. When Alvarez was between 100 and 200
meters from the street, one of the SUV passengers pointed a
handgun at him. Then, Aguilar started shooting. Alvarez was
hit almost immediately, in the foot and the back. He heard six or
seven shots. Alvarez’s wounds required medical treatment but
not surgery.
Within a few minutes, the SUV was stopped on the
freeway by a Glendale police officer. Appellant and Gurrola
remained in the SUV. The rear seat passenger, Aguilar, jumped
out and ran away down a freeway embankment. He was later
found in a backyard and returned to the location where the SUV
was stopped. About 40 minutes later, police brought Erick
Rodriguez to the location for a field show-up. Erick identified the
SUV and the men being detained as those who were involved in
the shooting. Alvarez was also brought to the site. He identified
Gurrola as the front seat passenger but could not identify the
other men.
Los Angeles Police Officer John Cuenca testified at
the preliminary hearing as a gang expert. He identified the
defendants as members of the Rascals gang and opined that the
Rascals and Toonerville gangs are “bitter rivals.” This shooting
occurred in “Toonerville territory.” Officer Cuenca explained that,
in the early morning hours of February 15, 2008, a member of the
Rascals was shot and killed. Toonerville members were arrested
in connection with that crime. He also opined that, when gang
members drive into rival gang territory and shoot at someone,
“it’s almost always an intent to injure . . . or probably kill them.”
A shooting like the one that occurred here would likely be
4
considered by gang members to be “pay back for what happened
in the prior evening . . . .”
Procedural History
Appellant pled no contest to the attempted willful,
deliberate and premeditated murder of Alvarez. He also
admitted enhancement allegations that a principal involved in
the offense personally discharged a firearm causing great bodily
injury (§ 12022.53, subd. (d), (e)(1)), and that the offense was
committed for the benefit of a criminal street gang. (§ 186.22,
subd. (b)(1)(C).) The trial court sentenced appellant to the upper
term of 9 years for the attempted murder and a 20-year
enhancement term for the firearm use.
After appellant filed his form petition for
resentencing, respondent conceded that he stated a prima facie
case for relief. The trial court appointed counsel to represent
him. No new evidence was presented at the evidentiary hearing.
Instead, the parties relied on the record of conviction including
the information, minute orders reflecting appellant’s change of
plea, the transcript of the preliminary hearing and the transcript
of the sentencing hearing. Following the arguments of counsel,
the trial court denied the petition because it found beyond a
reasonable doubt that appellant was a direct aider and abettor
who acted with express malice.
Standard of Review
The trial court sits as an independent fact finder
when considering a petition for resentencing under section
1172.6. (People v. Vargas (2022) 84 Cal.App.5th 943, 951.) We
review findings made after the evidentiary hearing for
substantial evidence. (People v. Reyes (2023) 14 Cal.5th 981, 988;
People v. Mitchell (2022) 81 Cal.App.5th 575, 591.) Under this
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familiar standard, we view the facts in the light most favorable to
the prosecution, presuming in support of the judgment the
existence of every fact that can be reasonably deduced from the
evidence and drawing all factual inferences in favor of the trial
court’s ruling. (Reyes, supra, at p. 988; Vargas, supra, 84
Cal.App.5th at p. 951.)
Discussion
Appellant contends the trial court erred when it
denied his petition for resentencing because there is no
substantial evidence that he acted with the specific intent to kill
the named victim, Miguel Alvarez, rather than some other
person. We are not persuaded.
Section 1172.6 established a process by which a
person convicted of “attempted murder under the natural and
probable consequences doctrine” may petition to have the
conviction vacated and to be resentenced on any remaining
counts. (Id., subd. (a); People v. Coley (2022) 77 Cal.App.5th 539,
548.) Once a petitioner establishes a prima facie case for
resentencing, the trial court appoints counsel, issues an order to
show cause and schedules an evidentiary hearing. At that
hearing, the prosecution bears the burden to prove, beyond a
reasonable doubt, that the petitioner could be convicted of
attempted murder under “California law as amended by the
changes to Section 188 or 189 made effective January 1, 2019.”
(§ 1172.6, subd. (d)(3).)
A petitioner is not entitled to resentencing under
section 1172.6 if he or she was convicted of attempted murder
“either as a perpetrator or a direct aider and abettor, and not
under the natural and probable consequences doctrine, or indeed
any theory under which malice is imputed to a person based
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solely on that person’s participation in a crime.” (People v. Cortes
(2022) 75 Cal.App.5th 198, 204.)
Attempted murder “ ‘requires the specific intent to
kill and the commission of a direct but ineffectual act toward
accomplishing the intended killing.’ ” (People v. Falaniko (2016)
1 Cal.App.5th 1234, 1242 (Falaniko).) As our Supreme Court has
explained, “Attempted murder requires express malice, i.e.,
intent to kill. Implied malice – a conscious disregard for life –
suffices for murder but not attempted murder.” (People v. Stone
(2009) 46 Cal.4th 131, 139-140 (Stone).) The doctrine of
transferred intent does not apply to attempted murder because
“an intent to kill cannot be ‘transferred’ from one attempted
murder victim to another . . . .” (People v. Canizales (2019) 7
Cal.5th 591, 602.) “Someone who in truth does not intend to kill
a person is not guilty of that person's attempted murder even if
the crime would have been murder—due to transferred intent—if
the person were killed. To be guilty of attempted murder, the
defendant must intend to kill the alleged victim, not someone
else.” (People v. Bland (2002) 28 Cal.4th 313, 328.)
Appellant contends there is no substantial evidence
he directly aided and abetted the attempted murder of the named
victim, Alvarez, rather than the attempted murder of one of the
other people standing on the street at the time of the shooting.
The record, however, contains substantial evidence supporting
the trial court’s findings to the contrary.
Appellant, Gurrola and Aguilar were all members of
the same gang. On February 15, one of their follow gang
members was shot and killed. Members of their rival gang,
Toonerville, were arrested in connection with that shooting. The
next day, appellant drove Gurrola and Aguilar, who were armed
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with handguns, into rival gang territory. He must have heard
them question Erick Rodriguez and shout slurs about the rival
gang. Appellant then drove a short distance away but suddenly
stopped and reversed back to the first location. He stopped his
SUV in front of the driveway, giving his passengers the clearest
possible shot at Alvarez. Appellant remained parked in front of
the driveway while Aguilar jumped out of the back seat and fired
several shots down the driveway toward Alvarez. This conduct
shows that appellant shared his passengers’ intent to kill Alvarez
and that he acted to assist them in committing that crime.
(People v. Delgado (2013) 56 Cal.4th 480, 486 [elements of aiding
and abetting].)
There is also substantial evidence that appellant
shared his passengers’ intent to kill Alvarez rather than Erick
Rodriguez or one of the other bystanders. Alvarez testified that
the rear seat passenger, Aguilar, pointed a handgun directly at
him and that he was shot almost immediately. Erick Rodriguez
testified he was standing near the street with the driveway to his
right. When the shooting started, the SUV passengers were
shooting “off to the right.” Erick knew they were shooting in the
direction of “a paisa guy,” who was in the driveway, walking
toward them.2 He did not look to his right to see their target.
Erick testified that, at first, the SUV passengers were pointing
their guns at him, but when they started firing, they were
pointing their guns down the driveway in the direction of
Alvarez. There is no evidence that anyone other than Alvarez
was in the driveway during the shooting. Nor is there evidence
Erick later explained that a “paisa guy” is a non-gang
2
member from Mexico.
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that either of the shooters took aim at Erick Rodriguez or anyone
else.
The record of conviction thus contains substantial
evidence supporting the trial court’s finding beyond a reasonable
doubt that appellant was guilty of the attempted murder of
Miguel Alvarez and not some other person. Appellant
maneuvered his SUV to provide Gurrola and Aguilar with the
clearest possible shot at Alvarez. Aguilar aimed directly at
Alvarez rather than toward other bystanders. Appellant did not
drive away from the scene until Aguilar had fired several shots at
Alvarez. This is substantial evidence that appellant acted with
the specific intent to kill Alvarez. (Stone, supra, 46 Cal.4th 131
at pp. 139-140; Falaniko, supra, 1 Cal.App.5th at p. 1242.)
Because there is substantial evidence appellant acted with
specific intent to kill the named victim, it is not necessary for us
to consider the alternate “kill zone” theory. (People v. Smith
(2005) 37 Cal.4th 733, 745-746.) The trial court properly denied
the petition for resentencing.
Conclusion
Appellant Gurrola’s appeal is dismissed as
abandoned. (Cal. Rules of Court, rule 8.220, subd. (a).)
The order denying appellant Rodriguez’s petition for
resentencing is affirmed.
NOT TO BE PUBLISHED.
YEGAN, J.
We concur:
CODY, P. J. BALTODANO, J.
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Darrell S. Mavis, Judge
Superior Court County of Los Angeles
______________________________
Danalynn Pritz, under appointment by the Court of
appeal, for Defendant and Appellant, Daniel Rodriguez.
Miriam K. Billington, under appointment by the
Court of Appeal, for Defendant and Appellant, Iban Manuel Ma
Gurrola.
Rob Bonta, Attorney General, Charles C. Ragland,
Chief Assistant Attorney General, Susan Sullivan Pithey,
Assistant Attorney General, Michael C. Keller, John Yang,
Patricia Rosman, Deputy Attorneys General, for Plaintiff and
Respondent.