P. v. Rodriguez
Filed 1/17/13 P.
v. Rodriguez CA4/3
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
ROBERT CANDE RODRIGUEZ, JR., and
VICTOR ESTEBAN ALVARADO
Defendants and Appellants.
G045482
(Super. Ct. No. 09SF1113)
O P I N I O N
Appeals
from judgments of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Orange
County, William R. Froeberg, Judge. Affirmed.
Mark
Yanis, under appointment by the Court of Appeal, for Defendant and Appellant
Robert Cande Rodriguez, Jr.
John L.
Dodd, under appointment by the Court of Appeal, for Defendant and Appellant
Victor Esteban Alvarado.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Teresa
Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
Defendants
Robert Rodriguez, Jr., and Esteban Alvarado were convicted of two counts of href="http://www.mcmillanlaw.com/">first degree robbery in concert and href="http://www.fearnotlaw.com/">first degree burglary relating to a home
invasion robbery at a residence in San Juan Capistrano. Rodriguez asserts he was improperly sentenced
to the upper term on one of the robbery counts, an argument which we
wholeheartedly reject. Alvarado filed a
brief pursuant to href="http://www.mcmillanlaw.com/">People v. Wende (1979) 25 Cal.3d
436, and our review of the record reveals no error. We therefore affirm both defendants’
convictions.
I
FACTS
Vickie and David K.
lived in a gated community in San
Juan Capistrano. On the evening of December 6, 2009, at about 9:20, Vickie was downstairs watching television, and David was upstairs
in the master bedroom. Vickie heard the
front door open and thought it might be their teenage son. She turned around and saw a man wearing a
mask pointing a gun. The man with the
gun had a heavy build and was wearing a black ski mask and baggy clothing as
well as gloves. He told Vickie that they
knew she had money and they wanted it.
She saw that two other
men were with him, all of them coming toward her. One of these two was wearing a white hockey
mask made from plastic, and a black hooded sweatshirt with the hood over the mask. He had a thin build. The third man, who also had a thin build, was
not wearing a mask. He wore black-rimmed
glasses and a black hooded sweatshirt.
Responding to the
intruders’ demand, Vickie said the money was upstairs. She walked around the couch, and the man
pointed the gun at her head. Vickie
started walking up the stairs, with the three men following. When she was halfway up the stairs, her
husband came to the top of the stairway and asked what was going on. She said the men were robbing them and wanted
money.
The man with the gun
took her husband into the bedroom. The
man with the hockey mask began ransacking the other rooms, while the man with
the glasses kept her at the top of the stairs.
In the bedroom, the man with the gun took some watches and a box of
jewelry. He asked where David’s money
clip was, and he said it must be downstairs.
The men with the hockey mask and the glasses took David downstairs, while
the gunman remained with Vickie. She
tried to pull off the man’s mask, and he tried to kick her. Vickie and the gunman then went downstairs.
David located his money
clip and gave the cash to the gunman.
One of the men ordered David and Vickie to lie on the floor face down,
and their hands were taped. After a
moment, finding themselves alone but hearing footsteps upstairs, the couple ran
out the back door to their neighbor’s house.
They were able to see a man running out their front door and down the
street.
The police were called
and Sheriff’s Deputy Joseph Kantar arrived on the scene a minute or two after
receiving the call from dispatch. The
gated community had only one entrance/exit point, and he waited there. After about a minute, a black pickup truck
pulled up to the gate. Kantar got out of
his patrol car and started walking toward the truck. The driver then started to make a
U-turn. Kantar walked up to window and
asked the driver, eventually identified as Zachariah Todd Thompson, if he was
lost. Thompson appeared extremely
nervous and had a black ski mask rolled up on his head. When asked why he was there, Thompson told
Kantar he was picking up some friends.
Kantar also noticed black gloves and other black clothing, including what appeared to be
another black ski mask, on the passenger seat.href="#_ftn1" name="_ftnref1" title="">[1]
At that point, Kantar drew his weapon, told Thompson to turn off the
truck, and called for assistance.
Once
Sergeant Areso arrived on the scene, Thompson was taken out of the truck. In the truck bed, Kantar saw a number of
sports memorabilia items, later identified as belonging to the victims. He also found a live round of ammunition and
duct tape, as well as a California ID card belonging to Eric McLoughlin, and a
wallet containing Rodriguez’s driver’s license.
Thompson’s
cell phone, also found in the truck, kept ringing. He was receiving “incoming calls nonstopâ€
from people identified on the phone as Eric and Robert. Kantar gave the displayed numbers to dispatch
and asked them to track the numbers using an emergency ping. That procedure allows cellular phone companies
to locate a phone’s position using cell phone towers. Meanwhile, a search of the nearby area with a
canine unit located a pair of gloves and a dark sweatshirt.
Alvarado
and Rodriguez’s vehicle was located nearby and pulled over at approximately 4:10 the next morning in San Juan Capistrano.
Rodriguez was wearing glasses at the time of the stop, which Vickie
later identified, although she could not identify a suspect from a photo
array. Later that morning, McLoughlin
was found about a half-mile away from the victims’ house.
A search was conducted
on the home Alvarado shared with Christina Sotohref="#_ftn2" name="_ftnref2" title="">[2] in Lake Elsinore, but nothing of particular value was found. Soto, with some reluctance, spoke to Scott
McLeod, an investigator with the sheriff’s department. According to McLeod, her story developed
during the conversation, and some of the interview was taped and played for the
jury. (Some of it also conflicted with
her later trial testimony.)
Soto eventually told
McLeod that McLoughlin had picked up Alvarado on the night of the robbery
around 8:00 p.m. Alvarado then called her
about 10:00 or 11:00
p.m. and told her to pick him up. She drove from Lake Elsinore to San Juan Capistrano,
where she picked him up at a construction site, which turned out to be about a
mile from the victims’ home. He came “running out
of the construction area†and when she asked what was going on, he said the
police were after him for robbery.
Alvarado talked to both McLoughlin and Rodriguez on his cell phone,
eventually returning to the construction site to pick up Rodriguez. They waited for McLoughlin, but he never
arrived. After they left the area,
McLoughlin sent a text message to Alvarado saying “Don’t leave me I haven’t
gotten caught.†When they arrived home,
Alvarado changed his clothes and left with Rodriguez to find McLoughlin.
Cell
phone records were introduced at trial which show numerous calls to and from
defendants and Soto on December 6 and 7.
At 10:30 p.m. on the 6th, there is a text from
to Soto from Alvarado giving her directions on where to pick him up. As Soto reported to McLeod, there was also a
text from McLoughlin to Alvarado at 2:17 a.m. on the 7th which read: “I haven’t gotten caught. Don’t leave
me.†There were several texts from Soto
to Alvarado in the early morning hours asking what was going on.
At
trial, Rodriguez’s mother testified that Thompson was her son’s best friend and
McLoughlin was her nephew, although she did not know Alvarado. She also testified that Rodriguez, at six feet
tall and over 300 pounds, could not have fit into the back of Thompson’s truck
because of his size.
Both
defendants were charged with two counts of first degree robbery in concert
(Pen. Code,href="#_ftn3" name="_ftnref3"
title="">[3] §§ 211, 212.5, subd. (a), 213,
subd. (a)(l)(A)), counts one and two) and one count of first degree
burglary. (§§ 459, 460, subd. (a).) It was alleged that as to all three counts,
both defendants had been armed with a firearm (§ 12022, subd. (a)(1).) The complaint also alleged Alvarado had
personally used a firearm (§ 12022.53, subd. (b)). The complaint also alleged Alvarado had been
convicted of two prior strike convictions (§§ 667, subds. (d), (e)(2)(A) and 1170.12, subds. (b), (C)(2)(A)), one prior serious
conviction (§ 667, subd. (a)(l)) and a prior prison term (§ 667.5, subd.
(b)).
The
jury found both defendants guilty on all three counts, but found the personal
use of a firearm enhancement against
Alvarado to be not true. The jury found
the arming enhancements true. Alvarado
subsequently admitted the truth of the prior offense allegations.
At
sentencing, the court sentenced Rodriguez to 12 years and four months in
prison, which consisted of the upper term of nine years on count one, a
consecutive two-year term on count two, and one year and four months on the
firearm enhancements. All other
punishment was stayed. A number of fines
and fees were imposed, and credit was awarded for time served.
As
to Alvarado, the court partly granted a Romero
motion, striking one prior offense for sentencing purposes. He was sentenced to the upper term of nine
years on count one, doubled to 18 years.
On count two, the court imposed one-third the midterm, doubled, of four
years. Sentence on count three was
stayed. He was sentenced to one year,
four months for the two weapon enhancements.
A total of six years was imposed for the prior prison term enhancements,
resulting in a sentence of 29 years four months. A number of fines and fees were imposed, and
credit was awarded for time served.
II
DISCUSSION
Defendant Rodriguez
The
sole error Rodriguez asserts is the trial court’s decision to sentence him to
the upper term of nine years for robbery.
He asserts the reasons the court expressed at sentencing were both an
improper dual use of facts and unsupported by the evidence. He also argues that despite counsel’s failure
to object, the issue was preserved for review, or in the alternative,
constituted ineffective assistance of counsel.
Even assuming the issue was preserved, this argument lacks merit.
The
trial court begins the sentencing process with the presumption that the middle
term is the appropriate one to impose.
“The midterm is statutorily presumed to be the appropriate term unless
there are circumstances in aggravation or mitigation of the crime. (Pen. Code, § 1170, subd. (b); Cal. Rules of
Court, rule 420(a).)†(>People v. Avalos (1996) 47 Cal.App.4th
1569, 1582-1583.) Further, the court may
not rely on a fact that constitutes an element of the crime (or an imposed
enhancement) to justify an upper term sentence.
(People v. Scott (1994) 9
Cal.4th 331, 350.)
The
sentencing court, however, has “‘wide discretion in weighing aggravating and
mitigating factors [citations], and may balance them against each other in
“qualitative as well as quantitative terms†[citation] . . . .’†(People
v. Avalos, supra, at p.
1582.) Indeed, a trial court may impose
an upper term based upon one
aggravating factor (People v. Black
(2007) 41 Cal.4th 799, 813), without stating its reasons for “entirely
disregard[ing] mitigating factors.†(>People v. Salazar (1983) 144 Cal.App.3d
799, 813.)
At
sentencing, the only fact the trial court found in mitigation was that
Rodriguez had no prior record. The court
found three factors in aggravation: the
manner in which the crime was executed indicated planning; Rodriguez held a
position of leadership, as he was the one who knew the community’s gate code;
and the defendants engaged in violent conduct, indicating they were a danger to
society. The court explained: “With the exception of the infliction of
great bodily injury, it is hard to imagine a more aggravating case. The defendants were armed, covered their
faces with masks, burst into the home of an unsuspecting husband and wife in
the evening hours and forced them to produce their cash and jewelry at
gunpoint, bound them face down on the floor.
The danger to both the occupants and the perpetrators is clearly
self-evident.â€
As
noted above, a single aggravating factor is sufficient to justify an upper term
sentence. (People v. Black, supra,
41 Cal.4th at p. 813.) The “violent
conduct†factor upon which the court relied is one of the enumerated
aggravating factors listed in California Rules of Court, rule 4.421(b),
specifically, “violent conduct that indicates a serious danger to
society.†Rodriguez argues that such
conduct is inherent in the crimes of robbery and burglary, and therefore using
it to justify the upper term constitutes an improper dual use of facts. He does not, however, cite any authority for
this proposition.
Section
211 describes robbery as “the felonious taking of personal property in the
possession of another, from his person or immediate presence, and against his
will, accomplished by means of force or fear.â€
The “force†necessary to complete a robbery need only be enough beyond
that necessary to steal the property had no resistance been offered. (People
v. Burns (2009) 172 Cal.App.4th 1251, 1259.) Here, the level of violence used was
considerably more. At the very minimum,
Rodriguez and his accomplices forced the victims to lie on the ground, and
bound their wrists with tape. Given that
this level of violence far exceeded the minimum level of force necessary to
complete a robbery, the trial court’s reliance on this factor did not
constitute a dual use of facts.
Rodriguez
also argues there was no evidence that he would be a danger to society upon
release, because he had no criminal history.
Perhaps unsurprisingly, he offers no citation to authority for this
vaguely absurd argument. The statutory
scheme does not automatically exempt first-time offenders from the possibility
of upper-term sentences. Further, the
facts surrounding this crime constitute more than sufficient evidence of
Rodriguez’s dangerousness. Because a
single aggravating factor justifies the upper term, we need not consider
Rodriguez’s remaining points.
Defendant Alvarado
Alvarado
filed a notice of appeal, and we
appointed counsel to represent him.
Counsel filed a brief which set forth the facts of the case. Counsel did not argue against the client, but
advised the court no issues were found to argue on Alvarado’s behalf. We examine the entire record ourselves to see
if any arguable issue is present. (>People v. Wende, supra, 25 Cal.3d at p. 438.)
The
facts are stated in some detail above. We must view the evidence in the light most favorable to the
judgment, drawing all reasonable deductions from the evidence in the judgment’s
favor. We must accept all assessments of
credibility as made by the trier of fact, then determine if substantial
evidence exists to support each element of the offense. (See People
v. Carpenter (1997) 15 Cal.4th 312, 387.)
Before a verdict may be set aside for insufficiency of the evidence, a
party must demonstrate “that upon no hypothesis whatever is there sufficient
substantial evidence to support it.†(>People v. Redmond (1969) 71 Cal.2d 745,
755; People v. Bolin (1998) 18
Cal.4th 297, 331.)
There
is more than sufficient evidence to find Alvarado guilty of both robbery and
burglary. In brief, his DNA was found on
items in Thompson’s truck,
which also contained items stolen in the robbery. Thompson and Rodriguez were best friends, and
Alvarado was arrested with Rodriguez less than 12 hours after the robbery in
the same neighborhood. Further, the text
message from McLoughlin to Alvarado, asking Alvarado not to leave him and
stating he hadn’t been caught, implicates him in the robbery and burglary.
There was more than substantial evidence from which the jury could
convict.
Counsel
requested we address two other issues.
The first is whether the foundation for the cell phone records and other
data extracted from the cell phones was sufficient. We conclude that it was. Evidence Code sections 1552 and 1553
establish evidentiary presumptions that printed representations of computer
information and digital photographs and video are accurate representations of
what they purport to represent. (Evid.
Code, §§ 1552, 1553.) The party opposing
such evidence has the burden of producing evidence to cast doubt on the
accuracy of such information, and no such evidence was introduced here. (See generally People v. Daugherty (2011)
199 Cal.App.4th Supp. 1.)
The
second issue is whether the court should have given the jury an instruction,
sua sponte, that Soto’s testimony should be viewed with caution because she
could have been charged as an accomplice.
Even in the highly unlikely event she could have been viewed as a
possible accomplice,href="#_ftn4"
name="_ftnref4" title="">[4] there was no chance that any
reasonable jury would have relied on her testimony alone to convict
Alvarado. (See CALCRIM Nos. 334,
335.) Ample additional evidence was
introduced at trial. Thus, no
instruction was required.
Alvarado
was given 30 days to file written argument on his own behalf. That period has passed, and we have received
no communication from him. Our review of
the record reveals no other arguable issues, including evidentiary or
instructional errors, or sentencing irregularities.
III
DISPOSITION
The
judgments against both defendants are affirmed.
MOORE,
J.
WE CONCUR:
RYLAARSDAM, ACTING P. J.
BEDSWORTH, J.
id=ftn1>
href="#_ftnref1"
name="_ftn1" title="">[1] Alvarado and Rodriguez’s DNA were later found on the items found in
the truck. The possibility of
contamination, however, could not be ruled out.
id=ftn2>
href="#_ftnref2"
name="_ftn2" title="">[2] Soto and Alvarado were apparently married by the time of trial, but
to distinguish her from one of the defendants, we refer to her as Soto.