Filed 8/1/23 P. v. Rodriguez CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,

 Plaintiff and Respondent,

v.

EDWARDO ALFREDO 

RODRIGUEZ,

 Defendant and Appellant.

2d Crim. No. B325845

(Super. Ct. No. VA124544)

(Los Angeles County)

Edwardo Alfredo Rodriguez appeals the denial of his 

petition for resentencing on his 2013 conviction of second degree 

murder (Pen. Code,

1 §§ 187, subd. (a); 189, subd. (b).) pursuant to 

section 1172.6 (former § 1170.95).

2 We affirm.

1 All statutory references are to the Penal Code.

2 Effective June 30, 2022 section 1175.95 was renumbered 

section 1172.6, with no change in text (Stats. 2022, ch. 58. §10).
2

The facts underlying appellant’s conviction are derived 

verbatim from our unpublished opinion affirming the conviction. 

(People v. Rodriguez, May 27, 2014, B248552 [nonpub. opn.].) “At 

about midnight on May 10, 2011, appellant and Eduardo ‘Dingo’

Gonzalez were driving in an Isuzu Trooper in South Gate when 

they saw Guillermo Elisea. Gonzalez fatally shot Elisea twice in 

the back and the Trooper sped away. [¶] Several weeks later, 

the police went to Gonzalez’s residence and recovered a .40-

caliber pistol. Tests confirmed that expended casings and a 

bullet found at the scene of the shooting were fired from the 

pistol.

“Following his arrest, appellant was placed in a cell along 

with two sheriff's deputies posing as inmates. In a recorded 

conversation that was played for the jury, appellant told the 

deputies he was riding with his ‘brother’ Dingo when Dingo 

spotted Elisea standing in front of an apartment building. Dingo 

had been ‘hunting’ Elisea due to a dispute over a woman. Dingo 

switched seats with appellant and shot Elisea multiple times in 

the back before appellant drove away. Appellant took the 

expended casings and flushed them down a toilet. He then 

parked the Trooper in Riverside on property owned by his 

girlfriend’s brother. Appellant also said the police found the 

murder weapon when they searched Dingo’s house. [¶] The 

police subsequently found the Trooper where appellant said he 

had parked it.”

A jury convicted appellant of second degree murder and

found true allegations that a principal personally used and 

intentionally discharged a firearm in committing the offense (§§ 

12022.53, subds. (b)-(d)). The trial court sentenced him to 15 

years to life in state prison. 
3

In February 2022, appellant filed a petition for 

resentencing under section 1172.6. Appellant’s petition alleged 

among other things that “[a] complaint, information, or 

indictment was filed against me that allowed the prosecution to 

proceed under a theory of felony murder, murder under the 

natural and probable consequences doctrine or other theory 

under which malice is imputed to a person based solely on that 

person’s participation in a crime . . . .” 

After counsel was appointed, the prosecution filed an 

opposition to the petition on the ground that appellant had not 

been tried on theories of felony murder or the natural probable 

consequences doctrine, or any other theory under which malice 

might have been improperly imputed to him. For support, the 

prosecution offered the jury instructions given at appellant’s 

trial, which demonstrated he had been prosecuted on the theory 

that he directly aided and abetted the murder of which he was 

convicted and that no instructions on felony murder or the 

natural and probable consequences doctrine were given. The 

trial court denied the petition on that ground. 

We appointed counsel to represent appellant in this appeal. 

After reviewing the record, counsel filed a brief raising no issues

in accordance with People v. Delgadillo (2022) 14 Cal.5th 216 

(Delgadillo) and requested that we independently review the 

record for error. We advised appellant of his right to personally 

submit any contentions or issues he wished us to consider. 

Appellant subsequently filed a supplemental brief in which he 

claims that the jury in his case was instructed on the natural and 
4

probable consequences theory of aider and abettor liability.

3 The 

record belies this claim.

Section 1172.6 was enacted pursuant to Senate Bill (SB) 

1437, which amended sections 188 and 189 to limit the reach of 

the felony murder rule in cases of first and second degree murder 

and eliminated the natural and probable consequences liability 

for murder. (Stats. 2018, ch. 1015, eff. Jan. 1, 2019.) Section 

1172.6 was added to provide a procedure for convicted persons 

who could not be convicted under the statutes as amended to 

retroactively obtain relief. (Id., § 4.) To meet his burden under 

the statute, appellant had to make a prima facie showing that all 

of the components of section 1172.6, apply, i.e., that “(1) A 

complaint, information, or indictment was filed against the 

petitioner that allowed the prosecution to proceed under a theory 

of felony murder or murder under the natural and probable 

consequences doctrine. [¶] (2) The petitioner was convicted of 

first degree or second degree murder following a trial or accepted 

a plea offer in lieu of a trial at which the petitioner could be 

convicted for first degree or second degree murder. [¶] (3) The 

petitioner could not be convicted of first or second degree murder 

because of changes to Section 188 or 189 made effective January 

1, 2019.”

After receiving the petition and appointing counsel, the 

trial court was required to evaluate the petition to determine 

whether it set forth a prima facie case for relief. (§ 1172.6, subds. 

(a)-(c); People v. Strong (2022) 13 Cal.5th 698, 708.) This showing 

3 Because appellant filed a supplemental brief, we are 

“required to evaluate the specific arguments presented in that 

brief and . . . issue a written opinion.” (Delgadillo, supra, 14 

Cal.5th at p. 232.)
5

is not made if “‘the record [of conviction], including the court’s

own documents, “contain[] facts refuting the allegations made in 

the petition . . . .”’” (People v. Lewis (2021) 11 Cal.5th, 952 971.) 

If the record demonstrates that the petition fails as a matter of 

law, the trial court may summarily deny it. (Id. at p. 974.)

The trial court correctly found that appellant had failed to 

set forth a prima facie case for resentencing relief under section 

1172.6 because the record of his conviction conclusively 

demonstrates he was neither tried nor convicted of murder on a 

theory of imputed malice rather than actual or implied malice. 

Appellant’s argument to the contrary misquotes CALJIC No.

3.00, which defines principals to crimes and makes no reference 

to felony murder or the natural and probable consequences

doctrine. Although appellant notes that the instruction on malice 

aforethought (CALJIC No. 8.11) allowed the jury to find he acted 

with implied malice if, among other things, the killing resulted 

from an intentional act and “[t]he natural consequences of the act 

[were] dangerous to human life,” this theory of second degree 

implied malice murder remains valid notwithstanding the 

changes effected by SB 1437. (People v. Reyes (2023) 14 Cal.5th.

981, 990.) 

The judgment is affirmed.

NOT TO BE PUBLISHED.

CODY, J.

We concur:

GILBERT, P. J. YEGAN, J.
6

Lee S. Tsao, Judge

Superior Court County of Los Angeles

______________________________

Sharon Fleming, under appointment by the Court of 

Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.