P. v. Rodriguez
Filed 1/23/13 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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opinion has not been certified for publication or ordered published for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 THREE
>
THE PEOPLE, Plaintiff and Respondent, v. JOSE FRANCISCO RODRIGUEZ, Defendant and Appellant. | G047279 (Super. Ct. No. 11CF3455) O P I N I O N |
Appeal from a judgment
of the Superior Court
of
County, John Conley, Judge.
Affirmed.
Richard L. Fitzer, under
appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for
Plaintiff and Respondent.
* * *
An information charged
Jose Francisco Rodriguez with second
degree robbery (Pen. Code, §§ 211, 212.5, subd. (c))
degree burglary (§§ 459, 460, subd. (b)), and alleged he had six strike
priors consistent with the “Three Strikes†law (§§ 667, subds. (d), (e)(2)(A)
& 1170.12 subds. (b), (c)(2)(A)), two prior serious felony convictions (§
667, subd. (a)(1)), and had served one prior prison term (§ 667.5, subd.
(b)). The trial court dismissed five of
the six strike priors before trial. (§
1385.) A jury found Rodriguez guilty of
both charged offenses, and Rodriguez admitted the truth of the prior conviction
allegations. The trial court dismissed
the remaining strike prior conviction (§ 1385) at sentencing and imposed a
total term of 12 years, consisting of the two-year low term for the robbery (§
213, subd. (a)(2)), plus five years for each prior serious felony conviction (§
667, subd. (a)(1)).
Rodriguez appealed and
we appointed counsel to represent
him. Counsel filed a brief which set
forth the facts of the case and the disposition. He did not argue against Rodriguez, but
advised us he had not found any issues to argue on Rodriguez’s behalf. (People
v. Wende (1979) 25 Cal.3d 436.) He
suggested the following four issues to assist in our independent review: (1) the trial court erroneously gave CALCRIM
No. 403 concerning the natural and probable consequences theory of aiding and
abetting; (2) omitted an instruction on jury unanimity; (3) denied Rodriguez
probation; and, (4) the evidence is insufficient to sustain the verdict.
Rodriguez was given 30
days to file written argument on his own behalf. That period has passed, and we have received
no written communication from him. We
examined the entire record to determine if any
those suggested by counsel, and found none.
(People v. Wende, supra, 25
Cal.3d at pp. 441-442; People v. Johnson
(1981) 123 Cal.App.3d 106, 111-112.)
Therefore, we affirm the judgment.
FACTS
One evening Rodriguez
and an unidentified cohort entered a 7-Eleven store. Rodriguez was wearing a New York Yankees
sweatshirt with a hood pulled over his head.
Rodriguez and his cohort each went to the back of the store, picked up a
24-pack case of Corona beer, and
left with the beer but without paying.
As Rodriguez left the store, the handle of a mop held by the store clerk
caught in the hood of his sweatshirt, but he pulled away without touching the
clerk. When the cohort left the store,
he pushed the clerk out of the way and there was a brief struggle. A surveillance video recorded these events
and a Santa Ana police officer made
photographs from the video. The
photographs were later used to generate fliers.
Patrick Morissey positively identified Rodriguez from one of these
fliers.
DISCUSSION
Natural and Probable Consequences Instruction
Rodriguez argues the
natural and probable consequences theory does not apply to minor crimes such as
petty theft, citing People v. Prettyman
(1996) 14 Cal.4th 248 and People v. Solis
(1993) 20 Cal.App.4th 264. However,
neither Prettyman nor
that the natural and probable consequences doctrine does not apply to petty
theft as distinguished from more serious crimes.
Unanimity Instruction
Rodriguez claims the
court should have given a unanimity instruction. In the context of a conviction under the
natural and probable consequences doctrine, “the jury need not unanimously
agree on the particular target crime the defendant aided and abetted.†(People
v. Prettyman, supra, 14 Cal.4th at pp. 267-268.)
Denial of Probation
Rodriguez contends the
trial court abused its discretion by denying probation. However, “[t]he grant or denial of probation
is within the trial court’s discretion and the defendant bears a heavy burden
when attempting to show an abuse of that discretion. [Citation.]â€
(People v. Aubrey (1998) 65
Cal.App.4th 279, 282.) Here, the court
carefully considered probation, but opted for the imposition of the minimum
state prison sentence. This disposition
is consistent with the general objectives in sentencing and the criteria
affecting probation set out in California Rules of Court, rules 4.410 and
4.414(b), particularly in light of the fact that the court dismissed six prior
convictions, any two of which could have resulted in a mandatory state prison
sentence of 25 years to life.
4. Sufficiency
of Evidence – Robbery
“Our role in considering
an insufficiency of the evidence claim is quite
limited. . . . [W]e endeavor to determine whether “‘
been persuaded of the defendant’s guilt.
[Citations.]†(
1355, 1382.) A defendant who takes
merchandise from a store and, when confronted by a store employee, uses force
or fear to prevent the store employee from retaking property and to facilitate
escape is guilty of robbery. (
23, 28.) Here, the surveillance video
alone (People’s exhibit No. 22) is sufficient to support the robbery
conviction.
DISPOSITION
The judgment is affirmed.
THOMPSON,
J.
WE CONCUR:
O’LEARY, P.
J.
ARONSON, J.
further statutory references are to the Penal Code.
