P. v. Rodriguez

















Filed 9/28/10 P. v. Rodriguez CA4/2









NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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opinion has not been certified for publication or ordered published for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 >



FOURTH APPELLATE DISTRICT



DIVISION TWO






>

THE PEOPLE, Plaintiff and Respondent, v. ALFRED RAY RODRIGUEZ et al., Defendants and Appellants.

E046636 (Super.Ct.No. FSB053198) OPINION

APPEAL
from the Superior Court
of San
Bernardino County.
Bryan Foster, Judge. Affirmed.

Lynda
A. Romero, under appointment by the Court of Appeal, for Defendant and
Appellant Alfred Ray Rodriguez.

Richard
Power, under appointment by the Court of Appeal, for Defendant and Appellant
Benjamin Hernandez.

Edmund
G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Gary W. Schons, Assistant Attorney General, and Gil Gonzalez and James
H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.

I. INTRODUCTION

Defendants
Alfred Ray Rodriguez (Rodriguez) and Benjamin Hernandez (Benjamin)^[1] appeal from their convictions of second degree murder (Pen. Code,^[2] § 187, subd. (a)). Both defendants contend the evidence was
insufficient to show they aided and abetted a codefendant^[3] in killing the victim.

The jury also
found true the allegation that Benjamin used a deadly weapon, a shovel, in the
commission of the murder (§ 12022, subd. (b)(1)). Benjamin contends that finding was not
supported by substantial evidence,
and the one-year sentence enhancement for weapon use must therefore be
stricken.

We find no error,
and we affirm the judgments.

II. FACTS AND PROCEDURAL BACKGROUND

Tina
Lopez testified that she had spent the night of November 17, 2005, with Jerry Ramirez (Jerry), her
boyfriend, at a motel. Tina telephoned
her father, Benjamin, and asked for a ride.
Edward Vincent Hernandez (Vinny) and Rodriguez, her cousins, picked her
and Jerry up. No one seemed tense or
angry.

The
group went to the home of Tina's aunt, where Jerry's brother, Eric Ramirez,
lived. Eric testified he had been
keeping a .22-caliber semiautomatic and a .22-caliber revolver, as well as a
.25-caliber clip, for Jerry. Eric
retrieved the guns and gave them to Jerry; Jerry unloaded the guns and gave
them and the clip to Vinny, who owned one of the guns. Tina's aunt testified that about a year
earlier, there had been problems between Vinny and Jerry.

The
group then proceeded to a house on East Pumalo Street
(the Pumalo house) where other extended family members lived. Tina's mother, Stella Lopez; Tina's aunt and
uncle, Ruth and Edward Hernandez, Sr. (Edward); and Benjamin were all at the
Pumalo house. Tina bickered with
Benjamin while Rodriguez, Vinny, and Jerry were outside. Tina heard â€