P. v. Rodriguez

















Filed 7/11/12 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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. ALFREDO RODRIGUEZ, Defendant and Appellant.

E053408 (Super.Ct.No. RIF140773) OPINION

APPEAL from the Superior
Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Riverside County. Ronald L. Taylor, Judge. (Retired judge of the Riverside Super. Ct.
assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal.
Const.) Affirmed.

Mark Alan Hart, under
appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney
General, Julie L. Garland, Senior Assistant Attorney General, and Garrett
Beaumont and Vincent P. LaPietra, Deputy Attorneys General, for Plaintiff and
Respondent.

A gang member — along with his wife and his
brother-in-law — was turned away from a party, apparently because two rival
gang members were present and did not want him there. After a brief fistfight, he left; however, he
soon returned, accompanied by friends and family members as reinforcements.

Defendant Alfredo Rodriguez was at the party,
helping his brother, who was the disk jockey (DJ). Defendant took it upon himself to arm himself
with a shotgun, to station himself just inside the entrance to the party, and
to shoot the first member of the gang member’s group who came in, killing him.

A jury found defendant guilty of href="http://www.fearnotlaw.com/">first degree murder (Pen. Code,
§§ 187, subd (a), 189), with an enhancement for personally and
intentionally discharging a firearm and causing death (Pen. Code, § 12022.53,
subd. (d)).

Defendant was sentenced to a total of 50 years to
life, plus the usual fines and fees.

Defendant contends:

1. The
trial court erroneously instructed that provocation cannot reduce first degree
murder to second degree murder unless
it meets the same objective standard as for voluntary manslaughter.

2. The
trial court erred by denying defendant’s motion for new trial, which was based
on the testimony of a newly discovered witness that the victim was armed.

3. The
imposition of punishment both for murder and for personally and intentionally
discharging a firearm, causing death, violates double jeopardy.

4. The
abstract of judgment should be corrected.

We find no prejudicial error. Hence, we will affirm.

I

FACTUAL BACKGROUND

On the night of December
15-16, 2007, a party was held in the back yard of a home on Inwood
Drive in Riverside. Although it was a birthday party, it had been
advertised via fliers, and there was a $5 admission charge. Doorkeepers collected the money at a side
gate to the back yard.

Jose Gutierrez arrived at the party with his wife, Maria Davila, and
her brother, Mark Castillo. Defendant’s
brother, who was acting as the DJ at the party, had invited them.

Gutierrez was a member of a gang called Tokers
Town.href="#_ftn1" name="_ftnref1" title="">^[1] His group paid their $15, but the people at
the gate would not let them in and would not give them their money back.

Octavio Zamudio and Martin Lopez started arguing with Gutierrez’s
group. Zamudio and Lopez were both
members of a gang called the Anaheim Drifters.
The Anaheim Drifters and Tokers
Town are “rivals.” Zamudio knew Gutierrez and blamed him for
tagging Zamudio’s house. Lopez and
Gutierrez likewise had “past issues.”

Zamudio tried to hit Gutierrez’s wife, but Gutierrez stepped in and
hit Zamudio in the face. Then “everybody
started fighting.” Somebody yelled, “Tokers
Town.” Somebody else said, “Drifters.” Lopez “socked [Gutierrez’s wife] in the
chest.” Eventually, the fight broke up,
and Gutierrez’s group drove away.

Defendant was at the party to help his brother with his job as
DJ. After Gutierrez’s group left,
witnesses saw defendant get a 12-gauge shotgun out of a van and place it in his
own car (a green Honda Accord).
Defendant said something like, “Don’t trip. I got the shotty right here if they come
back[.]”

Meanwhile, Gutierrez’s group recruited a number of relatives and
friends to go back to the party and “fight the guys.”href="#_ftn2" name="_ftnref2" title="">^[2] One subgroup of six people — including
Gutierrez and Henry Robles (the eventual victim) — drove to the party in
Gutierrez’s maroon Chevy Tahoe.href="#_ftn3"
name="_ftnref3" title="">^>[3] One of the occupants of the Tahoe had a
baseball bat. Another subgroup of three
people drove in a black Chevy Silverado.href="#_ftn4" name="_ftnref4" title="">^[4]

Both vehicles arrived at about the same time. They drove past the party slowly, then turned
around and parked. At this point,
defendant retrieved the shotgun from his car.

Also at this point, Zamudio and Lopez were just leaving the party —
either by coincidence or because they saw Gutierrez’s group coming. They got into Zamudio’s aqua Nissan
Titan. The occupants of the Tahoe got
out, ran over to the Titan, and started hitting and kicking it. One person threw a rock at it. Zamudio thought they were hitting it with
sticks (though he later told the police that he did not actually see any
sticks). The Titan sustained a “couple
[of] dents” before it managed to “t[ake] off.”

Some of the occupants of the Tahoe then ran toward the side gate. Robles either walked or ran through the gate
into the back yard. Castillo was a
couple of feet behind him. Eyewitnesses
disagreed on whether the gate was already open or Robles kicked it open.

Eyewitnesses’ testimony also varied with respect to whether Robles had
a weapon. In general, members of his
family testified that he did not.
Gutierrez himself, however, had told the police that Robles had a stick.

Juan Serrato, a party guest, told the police that Robles did not have
a weapon.

Irving Ceja, another party guest, testified that Robles had a
nightstick or a black pipe. Ceja had not
mentioned this to the police; however, they had not asked him about it.

Party guest Maria Mendoza saw three Mexican males with bats get out of
a black truck, then get back into the truck and leave.

George Lopez (Martin Lopez’s brother) testified that one of the
occupants of the Tahoe had a gun.

Adrian Moran, the host of the party, testified that people in Robles’s
group had guns and sticks. However, he
had told the police that none of them had a weapon.

Byron Mundy, another person at the party, testified that somebody
holding a gun ran up to the gate.
Somebody else (not the victim) had a pole or metal pipe.

Defendant was standing inside the side gate. He fired the shotgun three times. One shot hit Robles in the left side.href="#_ftn5" name="_ftnref5" title="">^[5] Nine pellets entered his body, causing fatal
injuries to multiple organs, including his lung, liver, and aorta.

The group from the Tahoe ran away, going east down the street. The group in the Silverado caught up with
them and picked them up. Just then, the
police arrived and stopped the Silverado.

A neighbor saw two male pedestrians (inferably former occupants of the
Tahoe) run across the street, then hide behind a car. He heard them say, “Get down. They are going to get us.” Just then, five or six people in a green four-door
Japanese car (inferably defendant’s Honda) drove by very slowly, with brights
on, as if looking for somebody. A
passenger was holding an object that could have been a gun. The pedestrians then ran east until they
encountered some police.href="#_ftn6"
name="_ftnref6" title="">^[6]

Between the party and the site of the stop, the police found an
aluminum baseball bat.href="#_ftn7"
name="_ftnref7" title="">^[7] No other weapons were found. The shotgun was never found.

When the police questioned defendant, he admitted being at the party,
but he denied seeing the shooting or having anything to do with it. He denied seeing anybody with any
weapons. At one point, an officer said,
“Just tell us if it was self-defense,” but defendant still denied everything.

Defendant took the stand in his own defense. He admitted a prior misdemeanor conviction
for carrying a concealed firearm in a vehicle.

Defendant testified that he kept a loaded shotgun in his car for
protection, because he and his brother had been the victims of an attempted
robbery. He had placed it in the van
temporarily when he left the party to pick up some friends.

When he got back, he heard there had been a fight involving gang
members. He was concerned that they
would come back. However, he denied
saying anything like, “Don’t worry. If
they come back, I got this.”

When the people got out of the Tahoe, defendant testified, “a few of
them had bats,” and Robles had a metal pole.
Defendant grabbed the shotgun from his car.

Defendant watched as the group from the Tahoe banged on the
Titan. After the Titan sped away, they
spotted defendant. Robles ran toward
him, followed by a guy wearing a beanie (i.e., Castillo). Defendant ran inside the gate and shut it.

Robles kicked the gate open.
Defendant backed away. He was in
fear for his life. He was also afraid
that they would attack his brother and other people at the party.

Robles “skipped and launched at” defendant. Defendant “just shot.” He did not aim. He fired a second shot in the air, to scare
them away. Someone fired two shots back
at him. Defendant shot a third time.

Defendant then got into his car and drove away. He hid the shotgun at “this girl’s house.”

II

JURY INSTRUCTIONS ON
PROVOCATION

Defendant contends that the trial court gave
erroneous jury instructions on provocation.

A. Additional Factual and
Procedural Background.

At defense counsel’s request, the trial court
gave CALCRIM No. 522, “Provocation:
Effect on Degree of Murder,” which stated:

“Provocation may reduce a murder from first
degree to second degree and may reduce a murder to a manslaughter. The weight and significance of the
provocation, if any, are for you to decide.
If you conclude that the defendant committed murder, but was provoked,
consider the provocation in deciding whether the crime was first or second
degree murder. Also, consider the provocation
in deciding whether the defendant committed murder or manslaughter.”

The trial court, apparently on its own motion,
also gave CALCRIM No. 570, “Voluntary Manslaughter: Heat of Passion — Lesser Included Offense,”
which stated, as relevant here:

“A killing that would otherwise be murder is
reduced to a voluntary manslaughter if the defendant killed someone because of
a sudden quarrel or in the heat of passion.
The defendant killed someone because of a sudden quarrel or in the heat
of passion if: No. 1, the defendant
was provoked; 2, as a result of the provocation, the defendant acted rashly and
under the influence of intense emotion that obscured his reasoning or judgment;
and 3, the provocation would have caused a person of average disposition to act
rashly and without due deliberation, that is, from passion rather than from
judgment. [¶]
. . . [¶]

“It is not enough that the defendant simply was
provoked. The defendant is not allowed
to set up his own standard of conduct.
You must decide whether the defendant was provoked and whether the
provocation was sufficient. In deciding
whether the provocation was sufficient, consider whether a person of average
disposition, in the same situation and knowing the same facts[,] would have
reacted from passion rather than from judgment.”

B. Analysis.

Provocation is an element of “heat of passion”
voluntary manslaughter. “‘[T]he factor
which distinguishes the “heat of passion” form of voluntary manslaughter from
murder is provocation. . . .’
[Citation.]” (>People v. Moye (2009) 47 Cal.4th 537,
549-550.)

To reduce a murder to voluntary manslaughter, the
provocation must meet an objective standard of reasonableness. “Objectively, the victim’s conduct must have
been sufficiently provocative to cause an ordinary person of average
disposition to act rashly or without due deliberation and reflection. [Citation.]”
(People v. Enraca (2012) 53
Cal.4th 735, 759.)

However, it has long been held that “the
‘“existence of provocation which is not ‘adequate’ to reduce the class of the
offense [from murder to manslaughter] may nevertheless raise a reasonable doubt
that the defendant formed the intent to kill upon, and carried it out after,
deliberation and premeditation”’ — an inquiry relevant to determining whether
the offense is premeditated murder in the first degree, or unpremeditated
murder in the second degree.
[Citation.]” (>People v. Carasi (2008) 44 Cal.4th 1263,
1306.) Although the court has no sua
sponte duty to instruct on this principle, a defendant may be entitled to an
instruction on it on request. (See >People v. Rogers (2006) 39 Cal.4th 826,
877-880.)

As this rule suggests, the provocation necessary
to reduce first degree murder to second degree murder does not have to pass an objective test.
(People v. Fitzpatrick (1992)
2 Cal.App.4th 1285, 1295-1296.) “The
issue is whether the provocation precluded the defendant from
deliberating. [Citation.] This requires a determination of the
defendant’s subjective state.” (Id.
at p. 1295, italics added.)

In this case, the trial court gave CALCRIM No.
522; thus, it properly instructed that provocation may reduce first degree
murder to second degree murder.
Defendant argues, however, that by giving CALCRIM No. 522 together with
CALCRIM No. 570, it effectively misinstructed
that provocation must meet an objective test, even when used for this purpose.

CALJIC No. 8.73 — the forerunner of CALCRIM No.
522 — was much clearer on this point. It
stated, “If the evidence establishes that there was provocation which played a
part in inducing an unlawful killing of a human being, but the provocation was not sufficient to reduce the homicide to
manslaughter, you should consider the provocation for the bearing it may
have on whether the defendant killed with or without deliberation and
premeditation.” (Italics added.)

We need not decide, however, whether the trial
court erred. We also need not decide
whether (as the People contend) defendant forfeited this contention by failing
to request a modification. There was
simply no evidence that defendant committed the homicide as a result of
provocation that met a subjective standard but failed to meet an objective
standard. Accordingly, there was no need
for an instruction on this point.

Defendant’s own testimony was aimed at establishing
reasonable or unreasonable self-defense, not provocation. (See People
v. Moye, supra, 47 Cal.4th at
pp. 552-554 [defendant’s testimony that victim attacked him with baseball
bat showed self-defense, not “heat of passion” voluntary manslaughter].) Even the prosecution’s evidence had some
tendency to establish self-defense. The
victim was in a group of nine people — including at least two gang members —
who were seeking revenge. His group
attacked the Titan, hitting it, kicking it, and throwing a rock at it, until it
sped away. The victim then entered the
back yard, followed by Castillo.

However, these were all factors that would >objectively tend to interfere with
deliberation. There was no evidence that
defendant was unusually susceptible subjectively
to provocation by the victim. The
instruction that “[t]he defendant is not allowed to set up his own standard of
conduct” and that the jury should “consider whether a person of average
disposition, in the same situation and knowing the same facts[,] would have
reacted from passion rather than from judgment” would not have prevented the
jury from considering all of the evidence of provocation in determining whether
defendant did, in fact, deliberate and premeditate.

At the same time, there was crucial evidence of
premeditation and deliberation. First,
defendant got the shotgun out of a van and stashed it in his car, while saying,
“Don’t trip. I got the shotty right here
if they come back[.]” Later, he
retrieved the shotgun and stationed himself inside the side gate. If the jury viewed this as premeditation at
all, it necessarily would have concluded that defendant was not >subjectively provoked.

Defendant’s real argument is that, if the jury
rejected provocation for purposes of voluntary manslaughter, the instructional
error required it also to reject provocation for purposes of second degree
murder. In the limited context of the
facts in this case, however, there was nothing wrong with this.

In closing argument, the prosecutor stated that,
to reduce murder from first degree to second degree, provocation had to be
“significant” rather than “marginal.”
Defendant now claims that this “compounded the instructional
error.” The prosecutor’s comment,
however, related to a different point than whether the provocation had to meet
an objective, reasonable-person test. It
was appropriate argument.

We therefore conclude that the trial court did
not err by giving CALCRIM No. 522 and No. 570.

III

MOTION FOR NEW TRIAL BASED ON

NEWLY DISCOVERED EVIDENCE THAT
THE VICTIM WAS ARMED

Defendant contends that the trial court erred by
denying his motion for new trial, which was based on the testimony of a newly
discovered witness that the victim was armed.

A. Additional Factual and
Procedural Background.

Defendant filed a motion for new trial based on
newly discovered evidence. In support of
the motion, he offered the declaration of one Gregorio Vargas.href="#_ftn8" name="_ftnref8" title="">^[8]

According to the declaration, Vargas was at the
party, in the back yard, when the shooting occurred. He saw “a bald chubby Hispanic
male . . . [¶] . . . charging at the
gate and attempting to jump over it.”
The man was holding “a silver metal object.” In Vargas’s opinion, it was “obvious” that he
was “going to . . . attack[] . . . .” The gate swung open, and defendant
fired. Vargas ran from the scene, and
the police never interviewed him.

The trial court denied the motion for new trial,
ruling that the proffered evidence was cumulative.

B. Analysis.

A trial court may grant a motion for new trial
when (among other things) “new evidence is discovered material to the
defendant, and which he could not, with reasonable diligence, have discovered
and produced at the trial.” (Pen. Code,
§ 1181, subd. 8.)

“‘In ruling on a motion for new trial based on
newly discovered evidence, the trial court considers the following
factors: “‘1. That the evidence, and not
merely its materiality, be newly discovered; 2. That the evidence be not
cumulative merely; 3. That it be such as to render a different result probable
on a retrial of the cause; 4. That the party could not with reasonable
diligence have discovered and produced it at the trial; and 5. That these facts
be shown by the best evidence of which the case admits.’” [Citations.]’
[Citation.]” (>People v. Howard (2010) 51 Cal.4th 15,
43.)

“‘“‘The determination of a motion for a new trial
rests so completely within the court’s discretion that its action will not be
disturbed unless a manifest and unmistakable abuse of discretion clearly
appears.’” [Citations.]’” (People
v. Howard, supra, 51 Cal.4th at
pp. 42-43.)

As the trial court noted, multiple witnesses
testified at trial that Robles (or some member of his group) was armed.

Gutierrez himself told the police that Robles had
a stick. At trial, he claimed not to
remember one way or the other, but he admitted that his statement to the police
had been truthful.

Party guest Irving Ceja testified that Robles had
a nightstick or a black pipe.

Claudia Robles — the victim’s widow — admitted
that one of the occupants of the Tahoe had a baseball bat.

Party guest Maria Mendoza saw three Hispanic men
with bats get out of a black truck.

Party guest George Lopez testified that one of
the occupants of the Tahoe had a gun.

Party host Adrian Moran testified that people in
Robles’s group had guns and sticks.

Finally, party guest Byron Mundy testified that
one of the occupants of the Tahoe had a metal pole or pipe and tried to fight
his way in through the gate. First, he
testified that three of them had guns; later, however, he testified that only one
of them had a gun and that that person shot Robles.

Defendant argues that the newly discovered
evidence was not cumulative because, unlike Vargas, each of these other
witnesses was biased or otherwise impeached.
But not so. First, Gutierrez’s
testimony on this point was highly credible.
It actually went counter to his bias; he instigated the entire revenge
expedition, and Robles was his brother-in-law.
Although he claimed to have forgotten by the time of trial whether
Robles had a stick or not, he admitted that whatever he told the police was
reliable. Defendant points out that
Gutierrez also testified that he was “high off
drugs . . . .”
Gutierrez claimed that this made him forget some things; however, he did
not claim that it made him remember things that did not actually happen.

Claudia Robles’s admission that somebody in the
Tahoe had a baseball bat similarly ran counter to her bias. Also, again, it was borne out by the bat that
the police found at the scene.

Maria Mendoza was not impeached. Defendant claims that she made inconsistent
statements about whether she knew his brother.
Actually, she consistently stated, both to the police and at trial, that
she did not know an “Andrew Rodriguez,” but she did know the DJ at the party,
under his nom de guerre of “DJ Smok.e” [sic].

Irving Ceja was impeached only in very minor
respects. Although he had not told
police about the weapon, he added that the police had never asked him about
it. He considered himself a friend of
defendant’s brother, but he had not seen defendant’s brother for about a year
before trial. At worst, he had falsely
told the police that he did not see the initial fight.

Admittedly, George Lopez, Adrian Moran, and Byron
Mundy were each impeached to a greater or lesser extent. Interestingly, however, these were the >only witnesses who stated that any
occupants of the Tahoe had guns. In any event, Moran and Mundy (though not
Lopez) stated that the occupants of the Tahoe also had sticks. Even if these statements lacked credibility
standing alone, they still served to corroborate the similar statements of
other, more reliable witnesses.

Defendant claims we must assume that Vargas could
not have been impeached, because there was no evidence impeaching him before
the trial court. This overlooks the fact
that, on a motion for new trial, the verdict is presumed correct. (People
v. Fuiava (2012) 53 Cal.4th 622, 729.)
Accordingly, it was defendant who had the burden of proof. (See. e.g., People v. Soojian (2010) 190 Cal.App.4th 491, 521.)href="#_ftn9" name="_ftnref9" title="">^[9] And defendant failed to show that Vargas was
not open to impeachment.

In any event, even assuming that Vargas was a
credible witness, the trial court did not abuse its discretion by concluding
that his testimony was cumulative. The
trial court therefore properly denied defendant’s motion for new trial.

IV

PUNISHMENT FOR BOTH MURDER AND
THE FIREARM ENHANCEMENT

Defendant contends that the imposition of
punishment both for murder and for personally and intentionally discharging a
firearm, causing death, violates double jeopardy.

Defendant relies on the principle that the
federal double jeopardy clause “protects against multiple punishments for the
same offense.” (North Carolina v. Pearce (1969) 395 U.S. 711, 717 [89 S.Ct. 2072,
23 L.Ed.2d 656], fn. omitted.) The
United States Supreme Court defines the “same offense” by applying the
“same-elements” test. (>U.S. v. Dixon (1993) 509 U.S. 688, 696
[113 S.Ct. 2849, 125 L.Ed.2d 556].) “The
same-elements test, sometimes referred to as the ‘Blockburger’ test, inquires whether each offense contains an
element not contained in the other; if not, they are the ‘same offence’ and
double jeopardy bars additional punishment and successive prosecution.” (Ibid.)

Defendant essentially reasons that, because the
enhancement applies only to a person convicted of one of a list of specified
offenses (Pen. Code, § 12022.53, subd. (a)), including murder (>id.,
subd. (a)(1)), murder is a “lesser included offense” of the enhancement.

As defendant concedes, however, the California Supreme
Court has held that enhancements are not treated as crimes or offenses for
purposes of the multiple conviction aspect of double jeopardy. (People
v. Gonzalez (2008) 43 Cal.4th 1118, 1130, and cases cited.) He indicates that he is raising this issue
“to preserve it for later review.” That
is his privilege. At this stage,
however, we must reject it.

In addition, even assuming that a conduct
enhancement could violate double jeopardy, Penal Code section 12022.53 does
not. “In Missouri v. Hunter, 459 U.S. 359, 366, 103 S.Ct. 673, 74 L.Ed.2d
535 (1983), the Supreme Court made clear that the protection against multiple
punishments for the same offense did not necessarily preclude cumulative
punishments in a single prosecution. The
key to determining whether multiple charges and punishments violate double
jeopardy is legislative intent.
[Citation.] When the legislature
intends to impose multiple punishments, double jeopardy is not invoked. [Citation.]

“Here, the language of California Penal Code §
12022.53 is clear. Subsection (d)
provides for a 25 year enhancement when a ‘firearm is used’ to commit
murder. There is, therefore, no question
as to what the California legislature intended. . . . [T]he California legislature has simply
determined that ‘a criminal offender may receive additional punishment for any
single crime committed with a firearm.’”
(Plascencia v. Alameida (9th
Cir. 2006) 467 F.3d 1190, 1204.)

We therefore conclude that the sentence did not
impose multiple punishment in violation of double
jeopardy.

V

CORRECTION OF THE ABSTRACT

Defendant asks us to correct two clerical errors
in the abstract of judgment. First, it
fails to reflect the fact that defendant was entitled to 1,215 days of presentence
custody credit. Second, it erroneously
states that he was sentenced pursuant to Penal Code section 667.61.

We take judicial notice that the trial court, at
the request of defendant’s appellate counsel, has already corrected both
errors. Accordingly, this issue is moot.

VI

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS



RICHLI

J.



We
concur:





RAMIREZ

P. J.





CODRINGTON

J.