People v. Rodriguez CA3

Filed 3/12/21 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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, C090984
Plaintiff and Respondent, (Super. Ct. No. 18FE020696)
v.
MANUEL SANTACRUZ RODRIGUEZ,
Defendant and Appellant.
A jury found defendant Manuel Santacruz Rodriguez guilty of two counts of
robbery and found true personal use of a firearm allegations as to each count. Defendant
testified in his own defense at trial, and now contends his trial counsel rendered
ineffective assistance by eliciting incriminating evidence on direct examination. We
conclude defendant has failed to establish ineffective assistance of counsel and will
affirm the judgment.
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FACTUAL AND PROCEDURAL BACKGROUND
Defendant, along with two codefendants, robbed two stores. In each robbery,
defendant entered a store pretending to be a customer. Once he began interacting with a
store employee, he would produce a gun and take money or items.1
At trial, defendant admitted committing the robberies, but claimed he had only
used a BB gun, rather than a real firearm. The prosecution called R.G., an employee at
the first store defendant robbed. He testified defendant pointed a gun at him from about
two feet away and that he had a “good look” at the gun. R.G. believed the gun was a
Beretta nine-millimeter based on the shape of the gun’s face and barrel; he knew the gun
was not a BB gun because its barrel was wider than a BB gun barrel.
R.G. testified he did not own any firearms. He had, however, served in the Air
Force for six years and had qualified to use Berettas in that time. As part of that
qualification, he fired, disassembled, and cleaned Berettas. He had observed Beretta
barrels from multiple angles and testified his experiences with firearm safety caused him
to pay close attention to the barrel of defendant’s gun. After defendant left the store,
R.G. called 911 and identified the make and model of the gun to the dispatcher.2
R.R., an employee at the second store defendant robbed, testified he was able to
look at defendant’s gun, but did not remember anything about the gun. On cross-
examination, defense counsel showed R.R. a BB gun and asked R.R. if it looked like the
gun defendant had used in the robbery, and R.R. replied he did not know. R.R. stated he
did not want to “get shot and then verify whether he has a gun or not.”
Detective Brant Santin, who investigated the crime, testified that a BB gun barrel
is smaller than a nine-millimeter barrel. A nine-millimeter barrel would be
1 Surveillance video footage of both robberies was entered into evidence and viewed by
the jury.
2 A recording of the 911 call was played for the jury at trial.
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approximately the size of a pinky finger, while a BB gun barrel would be the size of a
ball bearing.
The defense introduced two BB guns resembling real guns. Although the two BB
guns had been purchased shortly before trial, testimony established the guns had been
available for sale at the time of the crime in a local Walmart.
Defendant testified in his own defense. Defendant testified he first started using
methamphetamine in 2018. He explained that shortly before the robberies, he had been
fired from his job and bought methamphetamine from a “homeless gentleman.” He
bought a BB gun resembling a Beretta nine-millimeter at Walmart because he was
worried he might be robbed while buying drugs.
He ran into one of the codefendants at a gas station and asked her if she knew
where to get drugs. She took him to a hotel, where he met his other codefendant and a
pimp. While there, they received a call from the hotel telling them they had to pay their
hotel bill. Defendant told them he wanted drugs, and they suggested he help them
commit a robbery to pay for the hotel bill. He stated he used a BB gun in the robbery
because it looked like a real gun, but would not hurt anybody, and he would not “get
charged for the real gun.”
After the first robbery, they went back to the hotel and defendant waited for two
hours, but did not get the drugs he had been promised. Defendant left the hotel, but
noticed the BB gun he had just used was missing. He then went back to Walmart and
purchased a second BB gun. He testified that he also bought the second BB gun to
protect himself while buying drugs. He returned to the homeless encampment where he
had previously bought drugs, but could not find anybody.
He then returned to the hotel and asked the three others for help. Once again, the
hotel called them and told them the hotel bill was due, so the three asked defendant to
help rob another store. Defendant used the second BB gun to rob the store. Defendant
returned to the hotel, then again left without getting any drugs. Defendant drove to
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Portland and disposed of the BB gun on the way there. He spent 30 days in Oregon, then
went to Nebraska, where he was arrested.
Towards the end of his direct examination, defense counsel asked defendant:
“Q Let’s talk about some of your background. [¶] Have you ever been
arrested before?
“A Yes.
“Q What have you been arrested for?
“A Just misdemeanor stuff, possession of marijuana or driving without a
license. And one time, I got a child neglect charge cause I had marijuana in my house.
“Q Was the child home at the time?
“A No, she wasn’t.
“Q So, you picked up those, those were all misdemeanors and that was back in
Nebraska?
“A Yes.”
The parties then had a discussion outside the presence of the jury. The
prosecution informed the court defendant also had three felony arrests: two from 2015
for possession of a controlled substance and sexual assault, and one from 2018 for
possession of a controlled substance. The prosecutor stated she had not intended to
discuss defendant’s criminal history, but that his response had opened the door to
impeachment using the felony arrests.
Defense counsel responded: “Yes, I definitely did use the word ‘arrests’ and
almost had to concede that I did move it over because it was based off my client’s direct
response that he had only been arrested for those, I believe three items -- three offenses.
[¶] He could have mentioned the felony -- the two felony charges. What I’d ask is -- I
have to kind of put out there that the sexual one seems to be a 352 issue, even though the
door was open. The felony arrest for felony possession, that one I have to concede it was
fair game. [¶] He can explain that he was not convicted of a felony but arrest[ed] for it.
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He can explain that to the jury that what he meant was what I was convicted for even
though I used the word ‘arrest’. [¶] I would ask that the sexual assault matter still not be
allowed to be mentioned under the 352 analysis.” The court allowed the prosecution to
raise the three arrests, provided the sexual assault arrest was sanitized.
When the prosecutor asked defendant about his felony arrests, he clarified, “When
I answered that, I misunderstood. I thought you meant -- when you said arrest, to me
arrest means convictions. I’m not a lawyer, so I’m not up to lingo with the terms. [¶]
But when you get arrested for something and they let you go because it’s false, I don’t
assume you get arrested for that. I didn’t know that stays on your record. I was
wrongfully arrested for three things and those were all dismissed.” He admitted two
felony arrests from 2015 and one felony arrest from 2018. He explained that all three of
the charges had been dismissed or reduced to misdemeanors and clarified that he had
only been convicted of misdemeanors. The prosecutor did not ask defendant about the
nature of the charges for each arrest or the underlying details of the charged crimes.
On rebuttal, the prosecution introduced two phone calls defendant had made from
jail to his then-fiancée. In one of the calls, defendant mentions a senate bill related to
firearm laws. In neither call did defendant claim he was only using a BB gun during the
robberies.
During closing arguments, the prosecutor emphasized witness credibility, arguing
defendant was the only witness “who had a motive to lie out of every witness that we
heard from.” She did not mention defendant’s felony arrests.
The jury found defendant guilty of two robbery counts (Pen. Code, § 211) and
found true the allegations defendant personally used a firearm in the commission of both
crimes (Pen. Code, § 12022.53, subd. (b)).
DISCUSSION
Defendant argues he received ineffective assistance of counsel because defense
counsel introduced damaging testimony about his arrest record and opened the door to
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cross-examination on that record. The arrest record, defendant argues, damaged his
credibility and its introduction was thus prejudicial. We disagree.
To prevail on a claim of ineffective assistance of counsel, a defendant must show
(1) counsel’s performance fell below an objective standard of reasonableness under
prevailing professional norms, and (2) the deficient performance prejudiced defendant.
(Strickland v. Washington (1984) 466 U.S. 668, 688, 691-692 [104 S.Ct. 2052]
(Strickland); People v. Ledesma (1987) 43 Cal.3d 171, 216-218 (Ledesma).) A reviewing
court may reject a claim of ineffective assistance of counsel without addressing both
components if a defendant makes an insufficient showing as to either prong. (Strickland,
at p. 697.)
To show prejudice, defendant must show a reasonable probability of a more
favorable result had counsel’s performance not been deficient. (Strickland, supra,
466 U.S. at pp. 693-694; Ledesma, supra, 43 Cal.3d at pp. 217-218.) “The likelihood of
a different result must be substantial”—showing the errors had some conceivable effect
on the outcome is insufficient. (Harrington v. Richter (2011) 562 U.S. 86, 104, 112
[131 S.Ct. 770].)
Here, as defense counsel noted, defendant’s false response to the question “[w]hat
have you been arrested for” opened the door to impeach defendant’s testimony about his
arrests. Once defendant gave false testimony, relevant impeachment on the point was
appropriate. (Evid. Code, § 780.) When introducing the felony arrests, however, the
prosecutor did not reference the specific charges for which defendant was arrested,
asking, “you have three felony arrests, isn’t that right?” Nor did the prosecutor raise the
false testimony in her closing statement, despite an extensive discussion of defendant’s
credibility. The arrests were not for charges similar to the charges at issue in defendant’s
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trial.3 And, to the extent the arrest record raised the issue of defendant’s drug use,
defendant had already discussed his history with drugs. Defendant testified the charges
had been dismissed or reduced to misdemeanors, diminishing the impact of the
admissions. He further explained he had misunderstood defense counsel’s question to be
asking about his convictions, rather than his arrests, limiting the damage to his credibility
from the exchange.
There were also many other, more substantive inconsistencies in defendant’s
testimony that placed his credibility in doubt. For example, he testified to having at least
$1,000 in cash, at least two funded bank accounts, and a storage unit with at least $6,000
in equipment in his control, but claimed he and his codefendants robbed the stores to get
money to pay hotel bills. Defendant claimed he committed the robberies so his
codefendants would give him drugs, but he committed a second robbery, even though his
codefendants had not given him the drugs he was promised after the first robbery. He
testified he purchased the BB gun to protect himself from a homeless man from whom he
purchased drugs, but also testified he previously had bought drugs from the same man
five or six times without problems. He testified he first started using methamphetamine
in 2018, but later admitted he started using methamphetamine much earlier, when he was
15 or 16 years old.
Moreover, the prosecution’s key witness, R.G., was highly credible. He had
extensive experience with the firearm in question, identified the firearm by make and
model at the time of the crime, and could explain what specific characteristics he used to
identify it. His testimony was largely corroborated by the surveillance video. The jury
3 For this reason, we find unpersuasive defendant’s citation to People v. Perez (1978)
83 Cal.App.3d 718, which concluded the admission of a “recent conviction of a crime
very similar in nature to that charged against defendant” could be prejudicial when
assessing the adequacy of defense counsel. (Id. at p. 734.)
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was able to see the firearm in the surveillance video and review how defendant and the
victims treated the firearm when it was revealed. There is little to suggest the jury would
have found defendant more credible or persuasive had defense counsel acted differently,
and defendant has not shown defense counsel’s representation was prejudicial.
DISPOSITION
The judgment is affirmed.
/s/
RAYE, P. J.
We concur:
/s/
ROBIE, J.
/s/
MURRAY, J.
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