People v. Rodriguez CA4/2

Opinion

Filed 9/8/26 P. v. Rodriguez CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E087943 v. (Super.Ct.No. CR61600)

ELISEO ADAN RODRIGUEZ, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of Riverside County. Joshlyn R. Pulliam, Judge. Appeal dismissed.

Jill Kent, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent Defendant and appellant Eliseo Adan Rodriguez appeals from the order of the Superior Court of Riverside County denying his Penal Code section 1172.6 petition for resentencing.1 We will dismiss the appeal.

1 All further statutory references are to the Penal Code.

1 BACKGROUND2

In April 1994, a 78-year-old man (the victim) who had loaned money to defendant’s mother was found dead. He had suffered knife and ice pick stab wounds, and his ledger, wallet, a gun and a large amount of cash were missing. Several months later, defendant was arrested and detained for a parole violation. During that detention, he confessed to stabbing the victim.

A jury convicted defendant of first degree murder (§ 187) and of an enhancement for personally using a deadly and dangerous weapon during the commission of that offense (§ 12022, subd. (b)), and it found true the special circumstance that defendant committed the murder while he was engaged in committing a robbery (§§ 211, 190.2, subd. (a)(17)(i)). The trial court sentenced defendant to life without the possibility of parole and a consecutive term of one year for the enhancement and defendant appealed.

On appeal, we rejected defendant’s claims of error, including his argument that the trial court improperly denied his petition to exclude his confession. We ordered correction of the abstract of judgment and affirmed the judgment in all other respects.

(Rodriguez I., supra, E020046.)

On January 1, 2019, Senate Bill No. 1437 (2017-2018 Reg. Sess.) became effective. (Stats. 2018, ch. 1015.) That measure amended sections 188 (defining malice)

and 189 (defining degrees of murder) to limit the reach of the felony-murder rule and the 2 The background leading up to defendant’s section 1172.6 petition is, in the main, taken from this court’s unpublished opinion in defendant’s appeal from the judgment. (People v. Rodriguez (June 4, 1998, E020046) [nonpub. opn.] (Rodriquez I.).)

2 natural and probable consequences doctrine as it relates to murder. (Stats. 2018, ch. 1015, §§ 2, 3.)3 In May 2023, defendant filed a section 1172.6 petition for resentencing, stating he was entitled to resentencing relief because he had been convicted pursuant to the felony- murder rule or natural and probable consequences doctrine and could not now be convicted of murder because of the changes made to sections 188 and 189 that became effective on January 1, 2019. The trial court ordered the People to show cause why defendant should not be resentenced.

In response, the People submitted a memorandum of points and authorities arguing defendant was ineligible for section 1172.6 relief as a matter of law. The exhibits attached to their memorandum included documents from defendant’s trial: a copy of the supplemental clerk’s transcript containing the transcribed interview of defendant’s audio recorded statement to investigators in which he admitted he alone stabbed the victim, a copy of the transcript of one of the investigator’s testimony, the jury instructions given by trial court, and the jury’s signed verdict forms.

Defendant filed a brief arguing that he could not be convicted after the passage of Senate Bill No. 1437 because there was no evidence he was the actual killer and the evidence does not support a theory that he was an aider and abettor.

3 The statute was originally numbered section 1170.95, but was later renumbered section 1172.6 without change in the text, effective June 30, 2022 (Stats. 2022, ch. 58, § 10).

3 At the February 4, 2026 hearing on the petition, the parties agreed the matter could be decided based on the submissions of the parties. The court found defendant was not eligible for section 1172.6 relief because he was the actual killer, he acted alone, and he murdered the victim while robbing him. Defendant noticed this appeal and we appointed counsel to represent him.

DISCUSSION

Defendant’s counsel has filed an opening brief “in accordance with the procedures outlined in People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738” in which counsel sets forth statements of the case and the facts, and asserts we are required to conduct an independent review of the entire record pursuant to Wende.4 We do not agree.

The prophylactic procedures set forth in Wende are relevant only when the defendant has a previously established constitutional right to counsel. (People v. Delgadillo (2022) 14 Cal.5th 216, 224-225 (Delgadillo).) As our Supreme Court noted in Delgadillo, that court has never extended Shipman precedents finding a constitutional right to counsel to an appeal from a trial court’s ruling in a case involving an ameliorative legislative scheme such as section 1172.6, in which defendant’s right to counsel is only statutory. (Delgadillo, supra, at p. 228, citing People v. Shipman (1965) 62 Cal.2d 226, 231-232 [indigent defendants who establish a prima facie case in a petition for writ of 4 We granted counsel’s request for judicial notice of the record in defendant’s appeal from the judgment (Rodriguez I., supra, E020046), which counsel asserted was necessary to evaluate the correctness of defense counsel’s agreement to submit the matter on the parties’ submissions.

4 error coram nobis are entitled to appointed counsel because their claim can no longer be treated as frivolous].) We decline to extend Shipman in this case and will apply the procedures set forth in Delgadillo.

Under Delgadillo, appointed appellate counsel who are unable to find an arguable issue in an appeal from postjudgment orders must file a brief informing the appellate court of that determination and include a concise recitation of the facts bearing on the court’s orders. (Delgadillo, supra, 14 Cal.5th at p. 231.) Upon receipt of the brief, the appellate court is to send a copy of it to the defendant along with a notice informing the defendant (i) of the right to file a supplemental letter or brief, and (ii) that the failure to file a letter or brief within 30 days may result in dismissal of the appeal. (Id., at pp. 231- 232.)

If the defendant files a supplemental brief or letter, the appellate court is required to evaluate the arguments he or she raises and must issue a written opinion. (Delgadillo, supra, 14 Cal.5th at p. 232.) If the defendant does not respond to the appellate court’s notice, however, then that court may exercise its discretion to dismiss the appeal as abandoned. If it chooses to dismiss, it may do so with or without a written opinion. In all section 1172.6 appeals, the appellate court has discretion—but is not required—to conduct an independent review of the record. (Ibid.)

Here, upon receipt of the opening brief, we notified defendant that his counsel had filed a brief stating counsel had not found an arguable issue. In the notice, we cited Delgadillo, supra, 14 Cal.5th 216, explained this court is not required to conduct an independent review of the record but it may exercise its discretion to do so, and we 5 invited defendant to file any arguments he deemed necessary. Defendant did not file a brief.

Neither defendant nor his counsel have presented an issue and, after exercising our discretion to review the documents considered by the trial court at the hearing on defendant’s petition, we do not find any error. Accordingly, we dismiss defendant’s appeal.

DISPOSITION

The appeal is dismissed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ P. J.

We concur:

MILLER J. CODRINGTON J.