People v. Rodriguez CA3

Filed 3/17/22 P. v. Rodriguez CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C093467

Plaintiff and Respondent, (Super. Ct. No. 93F07391)

v.

NIXON RICARDO RODRIGUEZ,

Defendant and Appellant.

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.

1

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.