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Filed 3/17/22 P. v. Rodriguez CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication 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

THIRD APPELLATE DISTRICT

(Sacramento)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

NIXON RICARDO RODRIGUEZ,

Defendant and Appellant.

C093467

(Super. Ct. No. 93F07391)

Defendant Nixon Ricardo Rodriguez appeals the denial of his petition for 

resentencing pursuant to Penal Code section 1170.95.1 He contends the trial court erred 

by summarily denying his petition without issuing an order to show cause. We will 

reverse and direct the trial court to issue an order to show cause.

1 Undesignated statutory references are to the Penal Code.
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FACTUAL AND PROCEDURAL BACKGROUND

A. Statement of facts

The prosecution filed a consolidated amended complaint charging defendant in 

count one with murder (§ 187, subd. (a)) for the benefit of a criminal street gang 

(§ 186.22, subd. (b)(1)), while armed with a firearm (§ 12022, subd. (a)(1)) and lying in 

wait (§ 190.2, subd. (a)(15)); in counts two and three with attempted murder (§§ 664, 

187, subd. (a)) and personally using a firearm (§ 12022.5, subd. (a)) while personally 

inflicting great bodily harm (§ 12022.7) for the benefit of a criminal street gang 

(§ 186.22, subd. (b)(1)); in count four with attempted murder (§§ 664, 187, subd. (a)) and 

personally using a firearm (§ 12022.5, subd. (a)) for the benefit of a criminal street gang 

(§ 186.22, subd. (b)(1)); and in count five with discharge of a firearm at a motor vehicle 

(§ 246) while personally inflicting great bodily harm (§ 12022.7) for the benefit of a 

criminal street gang (§ 186.22, subd. (b)(1)). Count one concerned the interaction 

described below on September 1, 1993, that resulted in the death of a gang member. 

Counts two through five deal with a separate incident that occurred on August 29, 1993. 

Pursuant to a plea agreement, defendant pleaded guilty to counts one and five and

the prosecution moved to dismiss all of the other counts as well as the infliction of great 

bodily harm and the criminal street gang allegations as to count five. The trial court 

sentenced defendant to a term of 25 years to life on count one; two consecutive one-year 

terms on the enhancements under sections 12022, subdivision (a)(1), and 186.22, 

subdivision (b)(1); and five years consecutive on count five. 

The prosecutor recited the factual basis for defendant’s plea on count one as 

follows:

“[Defendant] was driving his car. In that car also is a right front passenger by the 

name of Anthony Perez. In the rear seat was the shooter person by the name of 

Christopher Jagerson. And all these individuals were members of the 47th Street 

[Sureños] gang.
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“Earlier that evening they had gotten together and discussed an incident involving 

30 members of their rival, the Franklin Gang[,] coming by Anthony Perez’s house, and 

intimidating miss [sic] mother in that fashion.

“For that reason, they were in the neighborhood to retaliate . . . . When they 

spotted the victim Manuel Esteban riding his bike on 37th Avenue and south on 28th 

Street. At which point [defendant] drove after Mr. Esteban, stopped the car, confronted 

him, asked him what set you’re from. Mr. Esteban responded Franklin. [Cod]efendant 

Jagerson in the back seat withdrew his .22 caliber semiautomatic and shot Mr. Esteban 10 

times in the back as he ran away.

“Defendant . . . then drove away from the scene with his headlights off and was 

stopped I believe at the intersection of 38th Avenue and Franklin Boulevard.” 

B. Petition for resentencing under section 1170.95

In 2019, defendant filed a petition under Senate Bill No. 1437 (2017-2018 Reg. 

Sess.) (Senate Bill 1437) and section 1170.95 to have his murder conviction vacated and 

to be resentenced. In his petition, defendant checked the boxes stating a complaint was 

filed against him that allowed the prosecution to proceed under a theory of felony murder 

or murder under the natural and probable circumstances doctrine, he pleaded “guilty or 

no contest to 1st or 2nd degree murder in lieu of going to trial” on murder charges 

because he believed he could be convicted pursuant to the felony-murder rule or the 

natural and probable consequences doctrine, and he “could not now be convicted of 1st or 

2nd degree murder” because of changes to section 188. The trial court appointed counsel 

for defendant and the parties briefed whether defendant had stated a prima facie case for 

relief under section 1170.95. 

In ruling on the petition, the trial court started with an examination of the factual 

basis for defendant’s plea. The trial court further provided a summary of the testimony 

presented at defendant’s preliminary hearing. That testimony established officers found 

the victim shot to death and .22-caliber shell casings nearby. A witness heard the 
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gunshots, saw the body, and observed a red car leaving the scene with its lights off. 

Shortly thereafter, officers stopped the red car driven by defendant. There were two 

passengers in the car, along with a .22-caliber rifle and bullets. 

Officers interviewed defendant at the scene. He admitted being a member of the 

Sureños gang and that he and his passengers went to the area looking for rival gang 

members. Defendant said if he saw any rival gang members, he intended to fight them. 

Defendant did not indicate there had been conversations about shooting anyone, but 

stated there had been discussions about “getting into it” with the rival gang. He stated he 

did not intend to shoot anyone. 

Defendant told officers he saw the victim, drove up to him, and made gang 

statements to him. The victim moved one of his hands to his pocket when the passenger 

in the backseat of defendant’s car opened fire. Defendant sped away with his headlights 

off until stopped by officers. 

Defendant said he recognized the victim from a prior altercation. During that 

altercation, the victim was in a car with another man, Aaron Holguin. Holguin got out of 

that car and put a gun to defendant’s head. 

When asked if defendant knew whether anyone in his car was armed, he said, 

“[W]ell, no,” with a pause. He also stated one of his passengers had a coat “with 

something in it.” Defendant claimed he did not know there was going to be shooting 

from his car or that there was a gun in it. 

The trial court concluded defendant’s murder conviction was “not based on either 

the felony murder rule or the natural and probable consequences theory.” The trial court 

further concluded defendant could not show he could not be convicted of murder after the 

changes made by Senate Bill 1437. The court based its conclusion on defendant’s

admission he was a gang member and he knew his passenger (the shooter) had been 

initiated into the gang and needed to shoot someone to gain respect. Further, the court 

noted defendant recognized the victim had been with someone who held a gun to 
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defendant’s head and defendant had gone out to retaliate against members of that gang. 

The trial court found “a jury could conclude, beyond a reasonable doubt, that defendant 

. . . is guilty of first degree murder based on a theory of the direct aiding and abetting of a 

willful, deliberate, premeditated murder.” The trial court denied the petition. 

DISCUSSION

Defendant argues he presented a prima facie case for relief and the trial court erred 

when it engaged in judicial factfinding at the prima facie stage of the petition process. 

The Attorney General responds that the record of conviction proves defendant is 

ineligible for relief as a matter of law. We agree with defendant and conclude the trial 

court should have set the matter for an order to show cause hearing.

Senate Bill 1437 was enacted “to amend the felony murder rule and the natural 

and probable consequences doctrine, as it relates to murder, to ensure that murder

liability is not imposed on a person who is not the actual killer, did not act with the intent 

to kill, or was not a major participant in the underlying felony who acted with reckless 

indifference to human life.” (Stats. 2018, ch. 1015, § 1(f).) The bill amended section

188, which defines malice, and section 189, which defines the degrees of murder, to 

address felony-murder liability. (Stats. 2018, ch. 1015, §§ 2 & 3.) As relevant here, 

Senate Bill 1437 also added section 1170.95, which provides a procedure for those 

convicted of murder premised on either a felony-murder or natural and probable 

consequences theory to petition for resentencing if they could not be convicted of first or 

second degree murder because of changes to section 188 or 189 by the bill. (Stats. 2018, 

ch. 1015, § 4; § 1170.95, subd. (a).)

Under section 1170.95, subdivision (c),2the trial court must take briefing from the 

parties and then determine whether “the petitioner makes a prima facie showing that the 

2 After briefing concluded in this case, the Legislature enacted Senate Bill No. 775 

(2021-2022 Reg. Sess.) (Stats. 2021, ch. 551) amending section 1170.95. Subdivision (c) 
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petitioner is entitled to relief.” (§ 1170.95, subd. (c); People v. Lewis (2021) 11 Cal.5th

952, 961 (Lewis).) In performing this preliminary screening function, the court should 

accept the petitioner’s allegations as true and “should not make credibility determinations 

or engage in ‘factfinding involving the weighing of evidence or the exercise of 

discretion.’ ” (Lewis, supra, at p. 974.) Courts, however, are not limited to the 

allegations of the petition; rather, they may “rely on the record of conviction in 

determining whether that single prima facie showing is made.” (Id. at p. 970.) Thus, if 

the record of conviction establishes the petition lacks merit as a matter of law, the trial 

court may deny the petition without conducting further proceedings. (Id. at p. 971 [“The 

record of conviction will necessarily inform the trial court’s prima facie inquiry under 

section 1170.95, allowing the court to distinguish petitions with potential merit from 

those that are clearly meritless”].) If, accepting the facts asserted in the petition as true, 

the petitioner would be entitled to relief because petitioner has met the requirements of 

section 1170.95, subdivision (a), then the trial court shall issue an order to show cause. 

(§ 1170.95, subd. (c).)

Here, defendant filed a facially sufficient petition alleging the essential facts 

required for relief under section 1170.95, subdivision (a). In response, the trial court first 

concluded section 1170.95 did not apply because defendant was not charged under a

theory of felony murder or the natural and probable consequences doctrine. The record, 

however, reflects the complaint generically charged defendant with murder, without 

specifying the theory under which the prosecution intended to proceed. It “has long been 

the law in this state that an accusatory pleading charging murder need not specify degree 

or the manner in which the murder was committed” (People v. Thomas (1987) 43 Cal.3d 

818, 829, fn. 5), nor need it “specify the theory of murder on which the prosecution relies 

now requires the court to hold a hearing to determine whether petitioner has made a 

prima facie case for relief and if it declines to issue an order to show cause, it must 

provide a statement fully setting forth its reasons.
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at trial.” (People v. Contreras (2013) 58 Cal.4th 123, 147.) Thus, nothing in the 

complaint or the basis for the plea barred the prosecution from asserting either theory at 

trial.

The trial court’s alternative basis for its decision—defendant could not

demonstrate he could not be convicted of murder after the changes brought about by 

Senate Bill 1437—also does not support its denial of the petition as failing to state a 

prima facie case. The record of conviction does not demonstrate defendant was ineligible 

for resentencing as a matter of law. Rather, the factual basis for the plea disclosed only 

that: (1) defendant was the driver of the car seeking out rival gang members; (2) when 

they identified one, a person in the backseat opened fire; and (3) defendant drove away. 

Defendant did not admit as part of his plea he knew his passengers were armed or that he

or they intended to kill anyone. The evidence adduced at the preliminary hearing

concerning defendant’s knowledge about whether anyone in his car was armed was 

conflicting. Defendant did not admit to any discussions about killing anyone, only a 

discussion about “getting into it” with rival gang members. Defendant claimed to want to 

fight a rival gang member and said nothing about shooting them. In reaching the finding

“a jury could conclude, beyond a reasonable doubt, that defendant . . . is guilty of first 

degree murder based on a theory of the direct aiding and abetting of a willful, deliberate, 

premeditated murder,” the trial court weighed the evidence and engaged in factfinding to 

resolve the ambiguities in favor of a murder conviction. While this may be an

appropriate finding to make on this evidence after the order to show cause evidentiary 

hearing, the trial court was not permitted to make this finding at this prima facie stage of 

the proceedings based on this record. (§ 1170.95, subd. (c).)

Because there were no undisputed facts or admissions by defendant in the record

of conviction that conclusively establish defendant was prosecuted on a ground rendering 

him categorically ineligible for relief, the trial court should have accepted defendant’s 

factual assertions in his petition as true, issued an order to show cause, and proceeded to 
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an evidentiary hearing. (See Lewis, supra, 11 Cal.5th at p. 971 [“ ‘[a] court should not 

reject the petitioner’s factual allegations on credibility grounds without first conducting 

an evidentiary hearing’ ”].) On remand, we express no opinion about whether defendant 

is entitled to relief following the hearing.

DISPOSITION

The trial court’s order denying the petition for resentencing is reversed. The case 

is remanded for the trial court to issue an order to show cause and hold a hearing to 

determine whether defendant is entitled to relief under Penal Code section 1170.95.

 KRAUSE , J.

We concur:

 RAYE , P. J.

 BLEASE , J.