People v. Rodriguez CA4/3

Filed 12/8/20 P. v. Rodriguez CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G057841
v. (Super. Ct. No. 09CF3083)
FRANCISCO ALBERTO RODRIGUEZ, OPINION
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Orange County,
W. Michael Hayes, Judge. (Retired Judge of the Orange Sup. Ct. assigned by the Chief
Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed in part, reversed in part, and
remanded with instructions.
Patricia L. Brisbois, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Senior Assistant Attorney General, Charles C.
Ragland and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
A jury convicted Francisco Alberto Rodriguez of attempted premeditated
murder, burglary, robbery, street terrorism, and firearm possession. The jury also
returned true findings on associated weapon and street gang allegations. The court
sentenced him to an aggregate term of 14 years, eight months plus 15 years to life. On
appeal, Rodriguez maintains the court abused its discretion when it denied his motion for
new trial based on ineffective assistance of counsel. He also raises a sentencing issue,
which the Attorney General concedes. We conclude the first contention lacks merit but
agree with the parties the abstract of judgment must be corrected to reflect the correct
sentence on the attempted murder conviction. In all other respects, we affirm the
judgment.
FACTS
Rodriguez’s primary argument concerns issues raised in his new trial
motion. Accordingly, we limit our factual summary to focus on those claims.
The underlying convictions were based on evidence that on December 6,
2009, Rodriguez and his uncle, Jesus Mejia, broke into a garage and were attempting to
steal stereo equipment from a car when the owners (Husband and Wife) confronted them.
Rodriguez was inside the car and told Husband not to move. He then pointed a gun at
Husband. The gun was described as a black rifle or shotgun, not a handgun, 14 to 15
inches long. Mejia pointed a handgun at Wife while she was speaking with a 911
emergency operator. Rodriguez pointed his rifle at Husband and pulled the trigger three
times, but the gun appeared to jam. Both Husband and Wife testified as to having
observed Rodriguez’s finger on the trigger of the rifle or shotgun attempting to pull the
trigger and the gun jamming. Each time the weapon did not fire, it made Rodriguez
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angry, and he shook the rifle. When Rodriguez and Mejia heard sirens, they fled the
scene and drove away in a black Toyota after Rodriguez threw his shotgun into the trunk
of the car.
Rodriguez and Mejia were charged and were to be tried as codefendants.
However, before the trial scheduled for August 2015, Rodriguez’s counsel was
unexpectedly hospitalized. The court severed Rodriguez’s case and Mejia proceeded to
trial.1
A jury considered Rodriguez’s case in February 2017. In his defense, a
gang expert testified there were several reasons why the crime was not gang related.
Rodriguez testified and admitted he was involved in the incident with Mejia, his uncle.
He testified that on the night of the incident he was under the influence of
methamphetamine and driving around with Mejia trying to buy drugs. He randomly
opened the garage and saw the victim’s vehicle. Rodriguez stated he broke the car’s
window and tried to take the stereo while Mejia waited outside. Rodriguez claimed that
when Husband opened the garage door and walked inside, he pointed a black rifle BB
gun at him. Rodriguez stated he kept the gun moving so Husband would not get a good
look at it and realize it was a toy gun. He denied having his finger on the trigger or
shooting the gun. He asserted Mejia was also carrying a toy handgun. Rodriguez
claimed the crime was not committed for a gang, but rather because he needed money to
buy methamphetamine.
The jury returned guilty verdicts for all five counts and found true all the
special allegations. The court sentenced him to an aggregate term of 14 years, eight
1
A jury convicted Mejia of all the charged offenses, and this court reversed
the premeditated and deliberation special finding after concluding the court improperly
instructed the jury on premediated attempted murder under the natural and probable
consequences doctrine. (People v. Mejia (2019) 40 Cal. App. 5th 42.)
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months plus 15 years to life.2 The following month, defense counsel filed a declaration
asking the court to be relieved as counsel of record based on a conflict of interest.
In August 2018, Rodriguez filed a motion for new trial on the grounds his
former trial counsel failed to provide him with effective assistance of counsel. He
asserted that after trial, his new attorney found a report prepared in October 2011 by the
Office of the Alternative Defender. The report contained a copy of an interview with
Wife. After explaining the reasons why she and Husband went to their garage, which we
need not repeat here, she described the intruders and their actions. Relevant to this
appeal, Rodriguez asserted Wife stated the man she caught inside her vehicle (later
determined to be Rodriguez) initially pointed a handgun at them and pulled the trigger
twice. She described the handgun as a “‘fake-looking plastic gun’” similar to one that
would be sold by a toy vender at a “‘swap meet.’” Wife described the weapon as grey
and had a black handgrip. She stated after pulling the trigger, Rodriguez, “put the gun
back inside his right pant pocket and retrieved a ‘long rifle’ from inside the front chest
area of the sweater he was wearing.” Wife added that after Rodriguez told them not to
move, “the heavyset man standing at the front of the car,” Mejia, yelled to leave. Wife
heard Rodriguez, who was holding the rifle, reply “‘I’m going to give them a scare’” and
then “proceeded to rack the gun and pull the trigger at least three times[.]” Wife stated
the weapon did not discharge and she believed the shotgun was unloaded.
In his motion for new trial, Rodriguez asserted his attorney was ineffective
for failing to cross-examine Wife about her statements in this report, which suggested she
knew Rodriguez was using a toy gun and only wanted to scare but not harm her and
Husband. In support of the motion, Rodriguez’s trial attorney, Ernest Eady, filed a
declaration stating that after the trial was completed and he was putting the “file back
together” he discovered the defense investigator’s report. He stated the information in
2
We discuss the details of Rodriguez’s sentencing in more depth anon.
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the report about Rodriguez using a fake gun and only wanting to scare Husband and Wife
“mirrored” Rodriguez’s trial testimony. He conceded he had “no explanation as to why
[he] did not see the report before trial” and that “once [he] saw that report [he] declared a
conflict.
The prosecutor opposed the motion. He argued Rodriguez was asking the
court to consider unreliable evidence. He asserted the following: “While trial counsel
provided a declaration, the actual report from the Alternate Public Defender of the
interview of [Wife] consists of multiple layers of hearsay. The investigator who wrote
the report apparently did not speak Spanish and there has been no testimony or an
affidavit by the investigator as to its accuracy. There has been no testimony nor an
affidavit from the Spanish language interpreter regarding their qualifications as an
interpreter or the accuracy of the report as written. Furthermore, there is no known
recording of the interview. In addition, how credible can this evidence be when
defendant himself did not even corroborate it with his own trial testimony? [Citation.]”
In addition, the prosecution maintained the motion should be denied because Rodriguez
failed to establish prejudice. Reciting portions of the testimony, he argued defense
counsel was able to have both Wife and his client admit they did not know if the gun was
real or fake. He noted Rodriguez never mentioned during his testimony that he only
wanted to scare the couple. The court agreed with the prosecution and denied the motion.
DISCUSSION
I. New Trial Motion for Ineffective Assistance of Counsel
“Although ineffective assistance of counsel is not among the grounds
enumerated for ordering a new trial under Penal Code section 1181, motions alleging
ineffective assistance are permitted pursuant to ‘the constitutional duty of trial courts to
ensure that defendants be accorded due process of law.’ [Citation.] We review such
orders for an abuse of discretion. [Citation.]” (People v. Callahan (2004) 124
Cal. App. 4th 198, 209.)
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To prevail on an ineffective assistance of counsel (IAC) claim, a defendant
must show counsel’s performance was deficient under an objective standard of
professional responsibility, and that it is reasonably probable he would have received a
more favorable result at trial if counsel had not erred. (Strickland v. Washington (1984)
466 U.S. 668, 693-694.) “A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” (Id. at p. 694.) If no prejudice is shown, the
reviewing court need not scrutinize counsel’s failure to object for any deficiency.
(People v. Fairbank (1997) 16 Cal. 4th 1223, 1241.)
Rodriguez asserts the trial court erred by denying his motion for new trial
because impeaching Wife about her prior statements would have supported the defense
theory Rodriguez did not use a real gun and thus did not intend to kill nor attempt to
murder Husband. The Attorney General (AG) concedes Wife’s statements to the
investigator would have been admissible at trial to impeach her testimony that omitted
any reference to Rodriguez having a handgun before he pulled out the rifle, as well as her
omission of the statement she attributed to Rodriguez that he was trying to scare them.
The AG does not dispute defense counsel performed deficiently by failing to realize he
had impeachment evidence in his possession but failed to introduce it at trial. The AG
asserts notwithstanding this deficiency, the failure to introduce the impeachment
evidence at trial did not prejudice Rodriguez because it was not reasonably probable he
would have gotten a more favorable outcome at trial had the jury heard the prior
statements. As explained below, we agree with the AG.
The statement attributed by the defense investigator to Wife that Rodriguez
initially pulled out a handgun that looked fake, before he pulled out the rifle, would not
have significantly impeached Wife’s testimony. The crimes occurred on December 6,
2009. On October 20, 2011, almost two years after the incident, the defense investigator
interviewed Wife through an interpreter. She then testified at trial more than seven years
after the incident and five years after the interview, on February 27, 2017.
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During her testimony at trial through an interpreter, Wife was asked
whether the firearm she saw Rodriguez holding when she first saw him was a small gun
like a handgun or a longer gun like a rifle. She said it was a rifle and admitted she had
told the police it was a shotgun. Wife distinguished the gun Mejia pointed at her, a
handgun, from the rifle or shotgun Rodriguez held.
Rodriguez asserts Wife’s observations of a plastic toy gun made it more
reasonable the rifle or shotgun was a BB gun rather than a real gun. However, the jury
would have had no reason to conclude the rifle or shotgun used by Rodriguez was not
real, even if it believed he first pulled out a handgun that looked like a toy gun. Wife
never described the “long rifle” as appearing to be a toy. Husband also testified he saw
Rodriguez with the rifle or shotgun before Wife did, and Husband stated the gun
Rodriguez used was a rifle or shotgun, 14 or 15 inches long. He never suggested the rifle
or shotgun he was describing appeared to be a toy. Husband testified Rodriguez used a
shotgun or rifle and Mejia used a handgun.
Wife also testified that after the first and second time the rifle or shotgun
failed to fire, she saw Rodriguez’s face and he had an angry expression. She saw
Rodriguez pull the trigger of the rifle or shotgun three times, twice saw the trigger of the
rifle or shotgun move and heard the trigger “click.” She also described Rodriguez
shaking the rifle or shotgun up and down when it failed to fire.
Husband further corroborated Wife’s testimony. He testified he witnessed
Rodriguez pull the trigger of the rifle or shotgun “but it looked like it was jammed.” He
also stated Rodriguez pointed the rifle or shotgun at his upper torso and face. Husband
said he was afraid because he thought “he was going to shoot and kill us right there.”
Rodriguez testified in his own defense. He stated he never tried to fire the
BB gun, and never had his finger on the trigger of the gun. Rodriguez disputed Wife’s
testimony he pulled the trigger or that she heard the gun “click” twice. He similarly
disputed Husband’s testimony. He acknowledged it was foolish for him and his uncle,
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two Highland Street gang members, to go to an area where Rodriguez had been shot
before to commit crimes with toy guns but rationalized it because they were high on
drugs.
The statement attributed to Wife that Rodriguez told Mejia he was going to
scare the victims may have marginally corroborated Rodriguez’s testimony that he only
intended to intimidate Husband when he pointed the rifle at him and had no intent to kill
him. However, this testimony was contradicted by Wife’s statements at trial, consistent
with the statement attributed to her by the defense investigator, that Rodriguez attempted
to fire the rifle at Husband, pulling the trigger three times. Rodriguez denied pulling the
trigger even once, but the jury rejected his testimony.
The issues of whether Rodriguez possessed a real gun, as well as whether
he intended to kill Husband, were squarely presented to the jury. Husband and Wife
testified as to Rodriguez’s actions, Rodriguez testified he and Mejia had only toy guns.
Wife’s statement Rodriguez initially had a handgun may be slightly inconsistent with her
testimony at trial as to the handgun, but it does not undermine her testimony regarding
the rifle or shotgun. At no time did Wife tell the defense investigator she thought the rifle
or shotgun looked like a toy.
The jury heard testimony from Rodriguez that he had only a BB gun rifle or
shotgun and rejected it. Furthermore, Husband and Wife candidly acknowledged they
did not know if the gun used by Rodriguez was real. Their description of Rodriguez’s
actions with the rifle or shotgun, however, was convincing evidence that it was a real gun
and that Rodriguez intended to kill Husband with it. The jury concluded Husband and
Wife’s testimony was credible and Rodriguez’s testimony was not. There was no
reasonable probability the jury’s verdict would have been different if evidence of a
statement to Wife made, two years after the crime, indicating Rodriguez first pulled out a
fake looking handgun before then pulling out a rifle or shotgun, had been admitted.
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II. Sentencing Error
The Attorney General agrees the sentence on count 4, for attempted murder,
should be corrected. The court imposed a 15 years to life term, and the parties maintain it
should be a life term with a minimum parole eligibility of 15 years. We agree.
The gang enhancement, section 186.22, subdivision (b)(5), specifies the life
term for attempted premeditated murder is punishable under that section by increasing to
15 years the minimum parole eligibility for the life term. (§ 186.22, subd. (b)(5); see
People v. Villegas (2001) 92 Cal. App. 4th 1217, 1228-1229.) Accordingly, the sentence
on count 4 must be modified to reflect the imposition of a life term with the alternative
penalty provision of a minimum parole eligibility of 15 years.
DISPOSITION
The clerk of the superior court is directed to prepare a new abstract of
judgment reflecting the imposition of a life term with the alternative penalty provision of
a minimum parole eligibility of 15 years under section 186.22, subdivision (b)(5), and to
forward the amended abstract of judgment to the Department of Corrections, Division of
Adult Operations. We affirm the judgment as modified.
O’LEARY, P. J.
WE CONCUR:
BEDSWORTH, J.
IKOLA, J.
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