People v. Rodriguez CA4/1

California Court of Appeal · D080612 · 2023-04-21 · Unpublished

Proceeding: appeal from an order
Trial court: Superior Court of Riverside County · No. RIF132924
Trial judge: John D. Molloy
Outcome: affirmed — Affirmed.
Area: criminal
Panel: Richard D. Huffman, Sr. (author), Joan K. Irion, William S. Dato

Analysis

A model's reading — qwen3.8-27b, prompt v1, 2026-10-13T04:36Z · confidence low

The trial court denied Rodriguez's petition for resentencing under Penal Code section 1172.6, finding that the jury had determined he was the actual shooter and that he was not convicted under a natural and probable consequences theory. The Court of Appeal affirmed the denial, finding no arguable issues for reversal after an independent review of the record.

Ruling reviewed	Standard	The court	The model
Denial of petition for resentencing under Penal Code section 1172.6 “The court denied the petition, finding the record demonstrated the jury found Rodriguez was the actual shooter and that he was not convicted on a natural and probable consequences theory of liability.”	de novo	correct	agree with court agree with court

Authorities

relied: People v. Wende (1979) 25 Cal.3d 436 — Requires appointed appellate counsel to review the record for arguable issues when no issues are identified by the defendant.
relied: Anders v. California (1967) 386 U.S. 738 — Requires counsel to file a brief identifying any arguable issues and the court to conduct an independent review of the record.

The appellate opinion: sound with gaps — The opinion is procedurally sound as it correctly applies the Wende/Anders framework to review the record for arguable issues. It correctly identifies that the trial court's factual findings regarding the jury's determination of the shooter and the theory of liability are the basis for the denial.

How this analysis was made · dispute it

unusual disposition

A model's reading — claude-fable-5-1, prompt v1, 2026-10-13T04:30Z · confidence low

The Riverside County Superior Court denied Sergio Rodriguez's Penal Code section 1172.6 petition for resentencing on his 2009 attempted murder conviction, finding the record of conviction showed the jury found him to be the actual shooter and that he was not convicted under a natural and probable consequences theory. On appeal, counsel filed a Wende brief, Rodriguez filed a supplemental brief, and the Court of Appeal independently reviewed the record, found no arguable issues, and affirmed.

Ruling reviewed	Standard	The court	The model
Denial of the section 1172.6 petition for resentencing on the ground the record of conviction showed Rodriguez was the actual shooter and was not convicted on a natural and probable consequences theory “The court denied the petition, finding the record demonstrated the jury found Rodriguez was the actual shooter and that he was not convicted on a natural and probable consequences theory of liability.”	unclear	correct	unsure The appellate court conducted Wende/Anders independent review and did not articulate a standard of review or engage with the merits beyond stating no arguable issue exists. The opinion's own description of the verdict (principals, with at least one principal discharging a firearm) does not on its face establish that Rodriguez personally was the shooter, and the opinion does not explain whether the jury was instructed on natural and probable consequences, which would be dispositive for an attempted murder petition. If no such instruction was given, the denial is plainly correct; if the trial court instead resolved the shooter question by relying on the prior opinion's factual summary at the prima facie stage, People v. Lewis (2021) 11 Cal.5th 952 cautions against such factfinding. The opinion does not supply enough to resolve this.
Trial court's reliance on the Court of Appeal's prior opinion to determine Rodriguez was the actual shooter (issue identified by counsel under Anders and raised in supplemental brief) “Whether the court erred in relying on this court’s prior opinion to determine that Rodriguez was the actual “shooter.””	unclear	correct	unsure The court found no arguable issue but gave no analysis. People v. Lewis permits consideration of the record of conviction, including a prior appellate opinion, at the prima facie stage, but warns that the probative value of a factual summary is case specific and that the court may not engage in factfinding. Section 1172.6, subdivision (d)(3), as amended, limits use of prior appellate opinions at an evidentiary hearing to procedural history. Without knowing what the trial court actually relied on, the result cannot be confirmed or rejected from this opinion.
Rejection of Rodriguez's argument that the trial court should have addressed the harmless error analysis concerning the failure to instruct on attempted voluntary manslaughter at the original trial “We do not find the question of harmless error regarding a lesser offense to be relevant to the dismissal of the postjudgment petition for resentencing under section 1172.6.”	de novo	correct	agree with court Section 1172.6 relief is limited to convictions resting on felony murder, natural and probable consequences, or other theories of imputed malice; instructional error on a lesser included offense is a direct-appeal trial error that was already adjudicated and is outside the scope of the petition. The court's conclusion is correct.
Rejection of Rodriguez's argument that even if he was the shooter, the court should have considered his mental state at the time of the shooting “Finally, Rodriguez argues even if he was the “shooter,” the court should have considered his mental state at the time of the shooting.”	de novo	correct	agree with court An actual perpetrator of attempted murder is convicted on his own intent to kill, not on imputed malice, so a challenge to the sufficiency of the mental state finding is not cognizable under section 1172.6. The court's rejection of this contention is correct, though it offered no explanation.

Authorities

relied: People v. Wende (1979) 25 Cal.3d 436 — When appointed appellate counsel finds no arguable issues, the reviewing court independently reviews the entire record for arguable issues.
relied: Anders v. California (1967) 386 U.S. 738 — Appointed counsel who finds an appeal frivolous should file a brief referring to anything in the record that might arguably support the appeal.
missed: People v. Lewis (2021) 11 Cal.5th 952 — At the prima facie stage of a section 1172.6 petition the court may consider the record of conviction, including a prior appellate opinion, but may not engage in factfinding or weigh evidence, and the probative value of an appellate opinion's factual summary is case specific.
missed: People v. Delgadillo (2022) 14 Cal.5th 216 — Wende/Anders procedures do not apply to appeals from denial of section 1172.6 petitions; when the defendant files a supplemental brief the court must evaluate the specific arguments and issue a written opinion, and it retains discretion to independently review the record.

The appellate opinion: sound with gaps — The result is defensible because an attempted murder conviction of an actual shooter, or one not based on natural and probable consequences, is ineligible for section 1172.6 relief, and the lesser-offense and mental-state arguments are outside the statute. But the opinion applies Wende without acknowledging People v. Delgadillo, does not address People v. Lewis on the limits of relying on a prior opinion's factual summary, and does not reconcile its description of the firearm finding (at least one principal discharged a firearm) with the trial court's conclusion that the jury found Rodriguez was the actual shooter.

How this analysis was made · dispute it

record incomplete

Opinion

Filed 4/21/23 P. v. Rodriguez CA4/1 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.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D080612

Plaintiff and Respondent, v. (Super. Ct. No. RIF132924)

SERGIO RODRIGUEZ,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Riverside County, John D. Molloy, Judge. Affirmed. Sergio Rodriguez, in pro. per.; and Christopher Love, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. In 2009, a jury convicted Sergio Rodriguez and a codefendant of attempted murder (Pen. Code,1 §§ 664/187, subd. (a)). The jury also found Rodriguez and codefendant Salvador Munguia were principals in the offense and that at least one of the principals intentionally discharged a firearm 1 All further statutory references are to the Penal Code. causing great bodily injury (§ 12022.53, subd. (d)). Rodriguez was sentenced to a seven-year term consecutive to a 25 year-to-life term for the firearm enhancement. Rodriguez appealed and this court affirmed his conviction and sentence in an unpublished opinion. (People v. Munguia et al. (Dec. 21, 2010, D056080).) In 2022, Rodriguez filed a petition for resentencing under section 1170.95 (now renumbered section 1172.6). The court appointed counsel, received briefing, and held a hearing. The court denied the petition, finding the record demonstrated the jury found Rodriguez was the actual shooter and that he was not convicted on a natural and probable consequences theory of liability. Rodriguez filed a timely notice of appeal. Appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) indicating counsel has not been able to identify any arguable issues for reversal on appeal. Counsel asks the court to review the record consistent with Wende. We offered Rodriguez the opportunity to file his own brief on appeal and he has responded by filing a supplemental brief.

We will address Rodriguez’s submission later in this opinion.2 DISCUSSION As we have noted, appellate counsel has filed a Wende brief and asks the court to review the record for error. To assist the court in its review, and in compliance with Anders v. California (1967) 386 U.S. 738 (Anders), counsel has identified a possible issue that was considered in evaluating the potential 2 The facts of the offense are set forth in our prior opinion. We will not repeat them here. 2 merits of this appeal: Whether the court erred in relying on this court’s prior opinion to determine that Rodriguez was the actual “shooter.” In his supplemental brief, Rodriguez requests the court to take judicial notice of our records in People v. Munguia et al., supra, D056080, we grant that request. Rodriquez complains on the one hand the court should not have relied on our statement of facts. On the other hand, Rodriguez complains the trial court should have addressed the discussion of harmless error which took place at the original trial and the trial court’s failure to instruct on attempted voluntary manslaughter. We found any error to be harmless. We do not find the question of harmless error regarding a lesser offense to be relevant to the dismissal of the postjudgment petition for resentencing under section 1172.6. Finally, Rodriguez argues even if he was the “shooter,” the court should have considered his mental state at the time of the shooting. The supplemental brief does not raise any arguable issues for reversal of the order denying the petition for resentencing. We have reviewed the entire record as required by Wende and Anders. We have not discovered any arguable issues for reversal on appeal. Competent counsel has represented Rodriguez on this appeal.

3 DISPOSITION The order denying Rodriguez’s petition for resentencing under section 1172.6 is affirmed.

HUFFMAN, Acting P. J.

WE CONCUR:

IRION, J.

DATO, J.

Cites, in this corpus

People v. Wende Crim. 20851 · 1979-10-12