P. v. Rodriguez

























Filed 4/8/13 P. v. Rodriguez CA2/4











NOT TO BE PUBLISHED IN THE
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opinion has not been certified for publication or ordered published for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



SECOND APPELLATE DISTRICT



DIVISION FOUR












>

THE PEOPLE, Plaintiff and Respondent, v. ANTONIO POBLANO RODRIGUEZ, Defendant and Appellant.

B238002 (Los Angeles County Super. Ct. No. BA380466) ORDER MODIFYING OPINION AND DENYING REHEARING [CHANGE IN JUDGMENT]

THE COURT:*



It is
ordered that the opinion filed herein on March 18,
2013,
be modified as follows:

1. On page 1, line 2 of the first full paragraph, “Affirmed” is
changed to “Affirmed as modified.”

2. On page 9, after the second full paragraph which ends with
the phrase “a fair trial was not infringed,” the following paragraph is added:

The parties agree that defendant is
entitled to an additional day of presentence custody credit and, with respect
to count 2, should have been ordered to pay a $40 security fee pursuant to
section 1465.8, subdivision (a)(1) and a $30 court facilities assessment
pursuant to Government Code section 70373, subdivision (a)(1). We conclude the parties are correct and will
order that the abstract of judgment be amended.

3. On page 9, under the heading “>DISPOSITION,” the sentence “The
judgment is affirmed” is deleted and the following is inserted in its place:

The clerk of the
superior court is directed to amend the abstract of judgment to reflect that
defendant is awarded 118 days of presentence custody credit in addition to 17
days of presentence conduct credit and, with respect to count 2, is ordered to
pay a $40 security fee and a $30 court facilities assessment. A copy of the amended abstract is to be sent
to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.



This
modification constitutes a change in the judgment.

Appellant’s
petition for rehearing is denied.









________________________________________________________________________

*EPSTEIN, P. J. WILLHITE, J.
SUZUKAWA, J.

Filed
3/18/13 P. v.
Rodriguez CA2/4 (unmodifed version)

NOT TO BE PUBLISHED IN THE
OFFICIAL REPORTS






IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA



SECOND APPELLATE DISTRICT



DIVISION FOUR












>

THE PEOPLE, Plaintiff and Respondent, v. ANTONIO POBLANO RODRIGUEZ, Defendant and Appellant.

B238002 (Los Angeles County Super. Ct. No. BA380466)

APPEAL
from a judgment of the Superior Court of Los Angeles County, Rand S. Rubin,
Judge. Affirmed.

Christopher
Love, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Assistant Attorney General, James William Bilderback II and
Mark E. Weber, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant Antonio Poblano Rodriguez appeals from the judgment entered
following his conviction by jury of making criminal threats with the use of a
firearm and exhibiting a firearm. (Pen.
Code, §§ 422, 12022.5, subd. (a), 417, subd. (a)(2).)href="#_ftn1" name="_ftnref1" title="">>[1] He contends the trial court erred by allowing
a witness to testify despite the prosecutor’s failure to comply with the
discovery statute and denying his requested instruction. Defendant alleges the trial court’s errors
denied him a fair trial in violation of the federal and state
Constitutions. We discern no error and
affirm.



>STATEMENT OF FACTS

>

I. The Prosecution Case

At
approximately 11:00 a.m. on January 22, 2011, Desiderio Aguilar,
a tow truck driver, was dropping off a car at a body shop. He parked in an alley near the shop entrance
and entered the shop to transact his business.
He gave an invoice to one of the shop employees, Lizeth Estrada. According to Estrada, Aguilar appeared
happy. Aguilar left the office and while
returning to the tow truck, he saw defendant speaking to another shop
employee. Defendant was asking where the
“fucking driver” of the tow truck was.
Aguilar told defendant it was his truck, apologized, and said he was
leaving.

Aguilar
continued toward the truck. Defendant
was complaining that tow truck drivers were always blocking his driveway. Aguilar apologized and told defendant he
needed to be more polite, as he was not treating Aguilar with respect. Defendant, who was yelling at Aguilar, cursed
and said he was not the one who needed to be polite because it was Aguilar’s
fault for parking his tow truck in front of defendant’s garage. Aguilar continued to apologize, stating he
did not know what else to say. Defendant
threatened to shoot Aguilar. When
Aguilar asked whether he was really going to shoot, defendant repeated his threat.

Defendant
walked into his garage. Through the open
door, Aguilar saw defendant retrieve a black semiautomatic handgun and pull the
slide back to load a round in the chamber.
Aguilar noticed there was a person in the window of the apartment adjacent
to the alley, who appeared to be watching.
Aguilar had not seen the person before and was not sure if he would
recognize him. Defendant came out of the
garage with the gun and again threatened to shoot Aguilar. Aguilar told defendant to shoot if he was
going to because Aguilar was calling the police. Defendant told him to do so because the
police were not going to believe the word of a wetback.

Aguilar
tried to call 911 on his cell phone, but was unsuccessful. Defendant told him to move the truck. Aguilar responded that he was not going to do
anything until the police arrived.
Defendant said he was going to hit Aguilar and approached. He no longer had the gun. Aguilar went into the body shop.

Aguilar asked
Estrada for the number to the sheriff’s department. Aguilar appeared scared and was shaking. He told Estrada that the neighbor in front of
the body shop had pulled a gun on him and he called the sheriff’s department. Estrada knew Aguilar was speaking about
defendant.

When Aguilar and a
shop employee went back into the alley, defendant and the car Aguilar had seen
in defendant’s garage were gone. When
deputies arrived, Aguilar told them what had happened during his encounter with
defendant.

About
an hour later, as deputies were wrapping up their investigation in the alley,
defendant and another person arrived in defendant’s car. Aguilar identified defendant as the person
who threatened him with the gun and told police he wanted to press charges. Aguilar denied having any weapons or threatening
defendant while they were in the alley.

Los
Angeles County Sheriff’s Deputy Vincent Cisneros and his partner responded to
Aguilar’s call. When Cisneros arrived,
defendant was being detained by other deputies.
Cisneros spoke with Aguilar, who was trembling and appeared as if he
wanted to cry. After Aguilar told the
deputy he had seen the gun in defendant’s garage, Cisneros asked defendant
whether he could search the garage for the weapon. Defendant signed a consent form and told
Cisneros where the gun was located. The
deputy went into the garage and recovered the firearm, which had rounds in the
magazine and one in the chamber.
According to Cisneros, when the slide of the gun is pulled back, a
bullet moves from the magazine into the chamber. Aguilar told Cisneros that when defendant
retrieved the gun from the garage, he put a round in the chamber. Cisneros searched Aguilar’s tow truck and
found no weapons.

The
jury heard a recording of Aguilar’s call to the sheriff’s department.



II. The Defense Case

On January 22, 2011, as defendant was
preparing to go to work, he noticed a tow truck and a pickup were blocking the
entrance to his garage. He went to the
doorway of the body shop and asked one of the employees who owned the “damn tow
truck.” The employee pointed inside the
shop and defendant said he needed the truck moved. A few seconds later, Aguilar emerged from the
shop and defendant told him he needed the truck moved because he had to go to
work. Aguilar responded, “Relax, old man,
relax.” It appeared that Aguilar was
going to move the truck, but he turned and walked back into the shop. Defendant told him to move the “fucking
truck.”

Five
minutes passed and Aguilar came out of the shop. Defendant again told him to move his “fucking
truck.” Aguilar responded that defendant
could not speak to him that way. After
defendant replied he could speak to him any way he wanted, Aguilar got in
defendant’s face and said he would move the truck when he was finished with his
business. Aguilar then stated he was
going to call the police. Defendant
called him a stupid, ignorant wetback for believing the police would allow
Aguilar to park his tow truck in front of defendant’s garage.

Aguilar
became angry. He went into the cab of
the tow truck and jumped out with a tire iron in his hand. Defendant backed up into his garage. Aguilar advanced, telling defendant he was
not so tough. Defendant got a gun he
kept in the drawer of a work bench and cocked it. With the barrel of the gun pointed toward the
ground, he told Aguilar to back off.
Aguilar asked defendant whether he was going to shoot him and defendant
said, “No, dumb ass, back off.” As
Aguilar backed away, he called defendant a “fucking coward.” Defendant put the gun in the drawer. Someone from the shop moved the pickup away
from the garage door. Defendant got into
his car and drove away.

Defendant
did not call the police because on prior occasions they took too long to
respond. When he returned home with a
friend, deputies took him out of the car at gunpoint. He was handcuffed and placed in a patrol
car. Defendant told the deputies about
the dispute he had with Aguilar, explaining that he got the gun after Aguilar
approached him with a tire iron.
Defendant directed the deputies to the gun in the garage.



III. The Prosecution Case on
Rebuttal

Leonel
Cervantez lives in an apartment near the alley where the body shop is
located. On January 22, 2011, he heard
arguing and looked out his window.
Defendant was telling a man to move a car. The man told defendant to give him a minute
and he would move the car. Cervantez
then heard the man say, “Don’t point that gun at me or I’m going to call the
police.” Cervantez could see the man was
standing by a tow truck and did not move during the argument. Defendant was in the garage. Cervantez saw that the tow truck driver had a
cell phone in his hand.

The
first time anyone from the police or the district attorney’s office spoke to
him about the incident was at 6:30 a.m. on the previous Friday. (Cervantes testified on a Tuesday.) The prosecutor, a district attorney
investigator, and the tow truck driver appeared at his door. On the day of the incident, Cervantes gave
the tow truck driver his name and contact information.



>DISCUSSION

>

Defendant claims
the court erred by allowing Cervantez to testify. He argues the prosecution violated the
discovery statute by failing to provide his counsel with Cervantez’s name and a
report containing his statement. At this
juncture, it is essential to set forth the sequence of events that led to
Cervantez’s testimony at trial.

Aguilar
began testifying on the morning of August 10, 2011. During his testimony on direct examination,
Aguilar referred to a witness who saw the argument and tried to signal to
Aguilar. The attorneys asked to approach
the bench. Defendant’s counsel informed
the court that she had no discovery pertaining to this witness, to which the
prosecutor replied, “Me[,] either.” The
prosecutor explained that she did not know whether Aguilar had talked to this
person or if the person yelled something from the window. The court invited counsel to interview
Aguilar with respect to the witness and took a recess.

After
the recess, the court conducted a hearing out of the presence of the jury,
during which Aguilar testified to what the man in the window said. Aguilar stated that after defendant started
yelling and went into his garage, the man signaled to Aguilar that he was going
to call the police. Later, when
defendant emerged from the garage with the gun, the man shouted that he was
going to call the police.

The
court then stated, “Let me just ask, it’s obvious that we don’t have the
neighbor[,] right?” The prosecutor
answered, “Correct. I don’t even know
who he is.” The attorneys argued whether
the neighbor’s statements were admissible.
Defendant’s counsel, in discussing the call Aguilar made to the
sheriff’s department, acknowledged that Aguilar referred to a neighbor. The court deferred ruling on the
admissibility of the neighbor’s statements and declared a recess.

When
the attorneys returned to court, the prosecutor said that she and defendant’s
counsel interviewed Aguilar, who informed them that he had given the “name and
information” of the witness to one of the responding deputies. That information did not get recorded in the
police report. The court denied the
prosecutor’s request to admit the witness’s statements to Aguilar during the
incident.

Two
days later, on August 12, the prosecutor informed the court and defense counsel
that at 6:30 that morning, she and a district attorney investigator located the
neighbor witness, Cervantez. The
prosecutor stated: “I did speak with him. He indicated that he heard yelling. He could see the victim standing in the
alley. He told the victim to call the
police. He saw that the victim had a
cellphone in his hand and the victim was yelling, don’t shoot me. He could not see the defendant at the time
because the defendant was in the garage.
And, from his perspective, I did take a picture from his apartment and
the view that he showed me that he had, that you could not see inside the
garage but you can see directly across the alleyway to where the victim was
standing.”

The
court asked whether Cervantez could offer testimony as to whether Aguilar ever
had a tire iron or a crowbar. The
prosecutor replied, “I asked him that, if the victim had — when I asked him, I
said, did the victim have anything in his hand, and he said only a
cellphone.”

Defendant’s
attorney objected to Cervantez’s proposed testimony, alleging she had been
provided no discovery. She conceded that
his name was mentioned during Aguilar’s call to the sheriff’s department, but
the transcript of the call was “very, very confusing.” She argued that she had prepared the defense
based on the witnesses who had been disclosed and defendant would be prejudiced
if Cervantez was allowed to testify.

The
court stated that it was inclined to allow Cervantez to testify in rebuttal,
noting that the prosecutor had complied with discovery rules with respect to
rebuttal witnesses. It indicated that if
defendant testified Aguilar brandished a tire iron during their confrontation,
Cervantez’s testimony would be relevant.
Despite the prosecutor’s claim that she had no way of knowing prior to
trial that Cervantez was a witness, the court ruled it would not allow him to
be called during the prosecutor’s case-in-chief.

On
August 16, just prior to his being called as a witness, defense counsel
objected to Cervantez’s testimony on the grounds that she had not been provided
with his rap sheet or a written witness statement. The prosecutor said she had prepared a
statement the night before and presented counsel with a written statement and
Cervantez’s rap sheet. Although the
prosecutor wanted to elicit Cervantez’s testimony with respect to prior
contacts he had had with defendant, the court determined that it would allow
Cervantez to testify only about the incident in the alley.

Defendant
urges the “prosecutor violated her statutory duty of disclosure in two
ways. First, she failed to disclose the
name and address of a witness, 30 days prior to
trial. . . . [¶]
. . . [¶] Second, the prosecutor violated her ongoing
duty of disclosure because she had obtained Cervantez’s oral statement as of
6:30 a.m. on Friday, August 12, 2011.
[Record citation.] However, the
prosecutor did not disclose the content of the oral statement to defense counsel
until four days later.” He is incorrect
on both counts.

Defendant
argues the “prosecutor’s office had known of the witness in the upstairs window
for six months prior to trial,” as Aguilar had referred to the witness during
his preliminary hearing testimony.
Section 1054.1 sets forth a prosecutor’s obligation to disclose certain
materials and information to the defense.
He or she is required to disclose “[t]he names and addresses of persons >the prosecutor intends to call as witnesses
at trial.” (§ 1054.1, subd. (a),
italics added.) It is clear from the
record that the trial prosecutor discovered Cervantez was a potential witness
during Aguilar’s testimony before the jury and defendant does not contend
otherwise. At the earliest, the
prosecutor formed the intent to call Cervantez after she and defense counsel
interviewed Aguilar during a recess.
After the interview, both counsel knew Cervantez was a witness to the
argument in the alley and possessed information regarding how to contact
him. The prosecutor took the initiative
to locate and interview Cervantez.
Defendant’s attorney had the same opportunity to do so and chose not
to. The prosecutor fulfilled her
obligation to notify the defense that Cervantez was a possible witness at the
earliest opportunity. Put simply, this
is not a case where the prosecutor withheld information regarding a witness she
knew she would call at trial.

Defendant
suggests the prosecutor was derelict by failing to produce a written report of
her interview with Cervantez until four days after it had taken place. His complaint that he was blindsided by
Cervantez’s testimony is belied by the record.
He ignores the fact that on the morning the prosecutor interviewed
Cervantez, on the record, she informed the trial judge and defense counsel of
his statements. At this point, there was
no written report to produce. The
prosecutor delivered a written report on the morning Cervantez testified. Any delay in providing that report was
harmless because Cervantez was allowed to testify only to those observations
that had been disclosed to the defense in open court. Nothing prevented defense counsel from
speaking to Cervantez in the four-day interval between his initial interview
with the prosecutor and his trial testimony.


Defendant also
faults the trial court for failing to advise the jury of the prosecutor’s
untimely disclosure of a witness. As we
have concluded that the prosecutor complied with the discovery statute, the
court’s refusal to give the requested instruction was proper.href="#_ftn2" name="_ftnref2" title="">[2]

There
was no impropriety in the proceedings.
Defendant’s constitutional right to a fair trial was not infringed.



>DISPOSITION

>

The judgment is
affirmed.



NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS







SUZUKAWA,
J.



We concur:







EPSTEIN, P.
J.







WILLHITE,
J.