Filed 9/30/26 P. v. Rodriguez CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Butte)
THE PEOPLE, C102860
Plaintiff and Respondent,
(Super. Ct. No. 22CF00676)
v.
RAUL DANIEL LINAREZ RODRIGUEZ,
Defendant and Appellant.
A jury convicted defendant Raul Daniel Linarez Rodriguez of multiple firearm-
related offenses after a trial at which three law enforcement officers testified that he was
the suspect depicted in a surveillance video. The trial court selected the upper term on
various counts and sentenced him to 31 years four months in prison.
On appeal, Linarez Rodriguez contends that the trial court erred in admitting
testimony by more than one officer identifying him as the person in the video footage.
He also claims that his Sixth Amendment rights were violated when the trial court
sentenced him to the upper term without a jury trial on the applicable aggravating factors.
We reject Linarez Rodriguez’s first claim but agree that the matter must be remanded for
resentencing.
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BACKGROUND
I.
In October 2021, a group of men pulled Linarez Rodriguez out of his truck at an
intersection and beat him. After the assault, Linarez Rodriguez got back into his truck,
the attackers returned to a blue Ford Mustang, and everyone drove away. Linarez
Rodriguez was treated at the hospital for injuries to his head and face.
Chico Police Detective Sergeant Cody Uebelhardt watched a video of this incident
and identified Linarez Rodriguez as the owner of the truck and A.D. as the owner of the
blue Mustang. Detective Uebelhardt had known Linarez Rodriguez and A.D. for about
five to seven years; he believed Linarez Rodriguez was a member of the Norteño gang
while A.D. was a member of the rival Sureño gang.
Approximately two weeks later, D.G., an associate of A.D., was working at a gas
station convenience store across from a gym. As recounted by D.G. and a bystander, at
around 10:00 p.m., a man about six feet tall, wearing black clothes, a hood over his head,
and a red bandana over his face, approached D.G. outside the store. After a brief
argument, the man shot D.G. in the leg. Although D.G. and a witness were unable to
identify the shooter, police believed that the shooting was in retaliation for Linarez
Rodriguez’s beating a few days earlier. Officers arrested Linarez Rodriguez and
recovered a firearm they believed Linarez Rodriguez had discarded while fleeing from
police. They later linked the firearm to the shooting.
The People charged Linarez Rodriguez with assault with a semiautomatic firearm
(Pen. Code, § 245, subd. (b); count 1), with enhancements for personally using a firearm,
personally inflicting great bodily injury, suffering a prior serious felony conviction, and
serving a prior prison term for a violent felony (§§ 12022.5, subd. (a), 12022.7, subd. (a),
667, subd. (a), 667.5, subd. (a)).1 The People further charged Linarez Rodriguez with
1 Undesignated statutory references are to the Penal Code.
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shooting at an unoccupied vehicle (§ 247, subd. (b); count 2), being a felon in possession
of a firearm (§ 29800, subd. (a)(1); counts 3 & 4), unlawful possession of ammunition
(§ 30305, subd. (a)(1); count 5), misdemeanor fleeing a pursuing officer (§ 2800.1,
subd. (a); count 6), and misdemeanor resisting arrest (§ 148, subd. (a)(1); count 7). As to
counts 1 through 5, the People alleged that Linarez Rodriguez had a prior strike
conviction. (§§ 667, subds. (b)-(i), 1170.12.)
II.
Linarez Rodriguez was tried before a jury in May 2024. Before trial began, the
trial court granted Linarez Rodriguez’s motion to preclude law enforcement witnesses
from testifying as to his guilt.
During trial, the prosecution asked Detective Uebelhardt if he had an opinion as to
the identity of the shooter after watching the surveillance video from the gas station
where the shooting occurred. The trial court overruled Linarez Rodriguez’s objection,
explaining that the detective could render an opinion as to the shooter’s identity based on
the detective’s “familiarity with defendant and characteristics that he knows about the
defendant, and why he thinks that person in the video is the defendant.” Detective
Uebelhardt testified that, after reviewing the video footage, he believed Linarez
Rodriguez shot D.G. The detective said he had known Linarez Rodriguez for five to
seven years, and the detective identified various physical characteristics that Linarez
Rodriguez and the shooter shared.
The jury found Linarez Rodriguez guilty on counts 6 and 7. It deadlocked on the
remaining charges, and the trial court declared a mistrial on those counts.
III.
Linarez Rodriguez was tried before a second jury starting in September 2024.
Before trial, Linarez Rodriguez moved in limine to exclude Detective Uebelhardt’s
testimony in the first trial identifying him as the shooter. Linarez Rodriguez argued that
the testimony amounted to an opinion as to his guilt. The trial court overruled the
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objection, determining that the detective had properly testified as to the basis for his
opinion and that Linarez Rodriguez’s objection went to the weight of the testimony, not
its admissibility.
Later, the prosecutor informed defense counsel that he intended to call two
detectives and two sergeants to opine that Linarez Rodriguez was the shooter depicted in
the surveillance video. Defense counsel objected based on Evidence Code section 352,
arguing that “[t]his case is absolutely taking three times longer than it should already.
And to have five people instead of one testify to the exact same thing I think is incredibly
time-consuming and a complete waste of everybody’s time.” The prosecution stated that
it had decided to question other officers regarding their opinions of the shooter’s identity
because Linarez Rodriguez had challenged Detective Uebelhardt’s credibility. The
prosecution noted that these officers were already going to testify on other issues and that
they had independently reviewed the surveillance video. The trial court expressed
concern about the possible undue consumption of time, but said it would allow the
testimony “[i]f those witnesses are going to be testifying about additional points, so long
as there is a proper foundation laid for an identification of the suspect.”
Detective Uebelhardt testified in the second trial but was not asked to identify the
shooter. The jury was shown the surveillance video, and the prosecution presented three
other witnesses who opined that Linarez Rodriguez was the shooter shown in the video.
Detective Cedric Schwyzer testified that he had reviewed the surveillance video at
least a dozen times. He said that he was able to recognize the suspect “[b]ased on the
totality of the circumstances,” notwithstanding that he could not see the suspect’s face.
Detective Schwyzer had previous contacts with Linarez Rodriguez and believed Linarez
Rodriguez was the shooter based on, among other things, Linarez Rodriguez’s matching
height, dark-rimmed glasses, the presence of tattoos on one hand, and the lack of tattoos
on the other hand. Detective Schwyzer stated that Linarez Rodriguez was the tallest
member of the local Norteños and was the only one who also wore dark-rimmed glasses.
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Detective Schwyzer further noted that Linarez Rodriguez lived within walking distance
of the gas station, the video showed the shooter walking in the direction of Linarez
Rodriguez’s home, and the shooter wore a black beanie similar to one found in Linarez
Rodriguez’s truck.
Sergeant Alex Fliehr also testified that he had reviewed the video about a dozen
times. He did so “to be sure of [his] identification,” adding that he “didn’t want to
misidentify anybody and just be positive of who [he] was identifying.” Following that
review, Sergeant Fliehr opined that the shooter depicted in the video was Linarez
Rodriguez. The sergeant said that he had interacted with Linarez Rodriguez several
times, had seen some of his social media posts, and had observed his “height, weight,
gait, mannerism, characteristics of how he moves, and general appearance.” Sergeant
Fliehr noted, among other things, that Linarez Rodriguez and the suspect were both tall;
wore similar, distinctive thick glasses with large black frames; had distinctive tattoos on
their left hands; had tattoos on their left thumbs but not on their right thumbs; had similar
distinctive gaits; and had similar distinctive “head tic[s].”
Sergeant Dane Gregory testified that he had belonged to the same gym as Linarez
Rodriguez for two or three years, and while off-duty, had observed Linarez Rodriguez
multiple times over the years. Sergeant Gregory said he was asked to review the footage
to see if he could identify the person wearing a red bandana in the video. Before being
asked, Sergeant Gregory was not told the suspected identity of the person. He said it was
common for other detectives without knowledge of the offense to review photographs or
videos to provide “an independent and unbiased identification of the suspect.” Sergeant
Gregory reviewed the surveillance video, which he said did not show the suspect’s face
except for his glasses. Sergeant Gregory opined that Linarez Rodriguez was the shooter
based on the suspect’s distinctive look, including his long arms, legs, hands, and fingers;
distinctive, thick glasses; and distinctive tattoos on his hand.
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The jury found Linarez Rodriguez guilty of assault with a firearm and found the
firearm and great bodily injury enhancements to be true. It found Linarez Rodriguez not
guilty of shooting at an unoccupied motor vehicle but guilty of the lesser offense of
negligent discharge of a firearm (§ 246.3, subd. (a)). The jury found Linarez Rodriguez
guilty of the felon in possession and unlawful possession of ammunition counts. The jury
found that Linarez Rodriguez had a previous violent felony conviction for assault with a
firearm with a personal use enhancement and had not remained free from custody for
10 years. Linarez Rodriguez admitted the prior strike conviction on counts 1 through 5.
Linarez Rodriguez subsequently moved for a new trial, arguing, among other
things, that the trial court erroneously allowed the three officers to testify that he was the
shooter in the surveillance video. The court denied the motion. Citing People v. Mixon
(1982) 129 Cal.App.3d 118 (Mixon), the court reasoned that the three officers who
identified Linarez Rodriguez all did so based in part on prior contacts with him, and “[a]ll
of them had ample contacts with” Linarez Rodriguez. Linarez Rodriguez’s challenge
went more to the weight of the officers’ opinions, rather than their admissibility.
IV.
The trial court then turned to sentencing. The court noted that Linarez Rodriguez
had not stipulated to any aggravating factors, and the jury never found any to be true.
Looking to the California Rules of Court, the court “still [found] on balance that the
circumstances in aggravation outweigh the circumstances in mitigation.” Based on the
probation report, the court found that Linarez Rodriguez had numerous prior convictions
as an adult, had served prior prison terms, and was on postrelease community supervision
at the time of the current offenses.
The trial court sentenced Linarez Rodriguez to an aggregate term of 31 years four
months, as follows: 18 years on count 1 (the upper term of nine years doubled for the
prior strike); six years on count 2 (the upper term of three years doubled for the prior
strike), stayed under section 654; six years on count 3 (the upper term of three years
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doubled for the prior strike), stayed under section 654; 16 months consecutive on count 4
(one-third the middle term); six years on count 5 (the upper term doubled for the prior
strike), stayed under section 654; one year concurrent on each of counts 6 and 7;
four years for the enhancement under section 12022.5, subdivision (a) (the middle term);
three years for the enhancement under section 12022.7, subdivision (a); five years for the
enhancement under section 667, subdivision (a)(1); and three years for the enhancement
under section 667.5, subdivision (a), stayed under section 654.
Linarez Rodriguez timely appealed.
DISCUSSION
I.
Linarez Rodriguez first contends that the trial court impermissibly allowed more
than one officer to opine that he was the shooter shown in the gas station surveillance
video.
“A lay witness may offer opinion testimony if it is rationally based on the
witness’s perception and helpful to a clear understanding of the witness’s testimony.
(Evid. Code, § 800.) ‘[T]he identity of a person is a proper subject of nonexpert
opinion … .’ ” (People v. Leon (2015) 61 Cal.4th 569, 601.) “Admission of lay opinion
testimony is within the discretion of the trial court and will not be disturbed ‘unless a
clear abuse of discretion appears.’ ” (Mixon, supra, 129 Cal.App.3d at p. 127; see also
People v. Thompson (2010) 49 Cal.4th 79, 128-130 [trial court’s admission of lay opinion
testimony reviewed for abuse of discretion].)
In Leon, a detective identified the defendant as the person shown in surveillance
videos. (People v. Leon, supra, 61 Cal.4th at p. 600.) The detective was familiar with
the defendant because the detective had arrested him, saw him nearly 10 times thereafter,
and spent about two hours with him. (Ibid.) In addition, the jacket the defendant was
wearing when he was arrested appeared to be the same jacket worn by the suspect in the
surveillance videos. (Id. at pp. 600-601.) Our state Supreme Court concluded that the
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detective’s identification was properly admitted because it “was based on his relevant
personal knowledge and aided the jury.” (Id. at p. 601.)
In People v. Perry (1976) 60 Cal.App.3d 608, 610, a police officer reviewed video
surveillance of a robbery. The officer was able to identify the defendant as one of the
perpetrators based on the officer’s “numerous” prior contacts with the defendant in the
five preceding years and based on the distinctive appearance of the defendant’s eye.
(Ibid.) The appellate court upheld admission of the testimony, observing that the
witness’s opinion was sufficiently based on personal knowledge and reasoning that the
degree of a witness’s knowledge went to the weight rather than the admissibility of the
opinion. (Id. at pp. 613, 615; accord, Mixon, supra, 129 Cal.App.3d at pp. 131-132
[officers’ identification of defendant from surveillance photographs admissible where
officers were familiar with defendant from prior contacts].) The court further explained
that the testimony did “not invade the province of the trier of fact, but rather [was]
submitted as an aid in the determination of the ultimate question of the identity of the
culprit and the defendant’s guilt or innocence.” (Perry, at p. 615.)
Linarez Rodriguez acknowledges this case law and agrees that it was proper for
the trial court to allow Detective Schwyzer to testify. His claim on appeal is that the
court erred in permitting Sergeant Fliehr and Sergeant Gregory to also testify as to his
identity as the shooter. He maintains that, because the jury had already heard Detective
Schwyzer’s opinion and the bases for it, the additional identification testimony was
repetitive, cumulative, and usurped the jury’s factfinding role. He further contends that
the danger of undue prejudice substantially outweighed the probative value of the
evidence under Evidence Code section 352.
As an initial matter, the People contend that Linarez Rodriguez forfeited his claim
under Evidence Code section 352. We disagree. Given Linarez Rodriguez’s multiple
oral and written objections to the officers’ opinion testimony and subsequent motion for
new trial raising this issue, we find he adequately preserved his arguments for appeal.
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On the merits, however, we are not persuaded. Given the fact that the suspect’s
face in the surveillance video was obscured and no witnesses to the crime were able to
identify him, the three officers’ testimony concerning the similarities between Linarez
Rodriguez and the suspect shown in the video footage—including their height,
mannerisms, tattoos, and glasses—was helpful in assisting the jury to decide whether
Linarez Rodriguez committed the charged offenses. It is true that the officers’ testimony
was similar, but each had different prior interactions with Linarez Rodriguez and
different bases for his respective opinion. Under these circumstances, we cannot say that
any one of the officers’ identifications was unhelpful to the jury’s consideration of the
factual questions before it. (See Mixon, supra, 129 Cal.App.3d at pp. 126, 131-132
[identification by two officers helpful where “the surveillance photograph was not a clear
depiction of the subject” and officers “had seen [the defendant] in a variety of
contexts”].) Moreover, “because the surveillance video was played for the jury, jurors
could make up their own minds about whether the person shown” was Linarez
Rodriguez. (People v. Leon, supra, 61 Cal.4th at p. 601.)
We are also unconvinced by Linarez Rodriguez’s claim that the evidence was
substantially more prejudicial than probative under Evidence Code section 352. Linarez
Rodriguez argues that the cumulative nature of the testimony and what he perceives as
coordination among the law enforcement witnesses enhanced the testimony’s prejudicial
character. We reject this contention, as the challenged testimony was probative and
helpful, and the jury remained free to accept or reject it based on its own view of the
video and other evidence. Moreover, even accepting Linarez Rodriguez’s claim of law
enforcement witness coordination (a matter on which we express no opinion), such an
argument goes to the weight of the testimony, not its admissibility, especially where
Linarez Rodriguez was free to cross-examine the officers about their identifications and
did so. In addition, the trial court instructed the jury: “You may but are not required to
accept [lay witnesses’] opinions as true or correct … . You must decide whether
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information on which the witness relied was true and accurate. You may disregard all or
any part of an opinion that you find unbelievable, unreasonable, or unsupported by the
evidence.” (See Mixon, supra, 129 Cal.App.3d at p. 132 [jury properly instructed on how
to assess witness testimony].) Linarez Rodriguez has not shown that the trial court’s
decision to allow the testimony was arbitrary or capricious. (See People v. Branch
(2001) 91 Cal.App.4th 274, 282 [reviewing court will reverse trial court’s choice to admit
evidence under Evid. Code, § 352 “only if the court’s ruling was ‘arbitrary, whimsical, or
capricious as a matter of law’ ”].)
II.
Linarez Rodriguez next argues that the trial court violated his Sixth Amendment
rights by imposing an upper term sentence on counts 1, 2, 3, and 5 without obtaining a
jury trial waiver or stipulation to the aggravating factors on which the court relied. The
People concede that remand is required, and we accept the concession.
A.
Section 1170, subdivision (b)(2) provides that a trial court “may impose a sentence
exceeding the middle term only when there are circumstances in aggravation of the crime
that justify the imposition of a term of imprisonment exceeding the middle term and the
facts underlying those circumstances have been stipulated to by the defendant or have
been found true beyond a reasonable doubt at trial by the jury or by the judge in a court
trial.” The statute permits a court to “consider the defendant’s prior convictions in
determining sentencing based on a certified record of conviction without submitting the
prior convictions to a jury.” (§ 1170, subd. (b)(3).)
“[W]ith the exception of prior conviction allegations, ‘under the Sixth
Amendment, any fact that exposes a defendant to a greater potential sentence must be
found by a jury’ and ‘established beyond a reasonable doubt.’ ” (People v. Lynch (2024)
16 Cal.5th 730, 747 (Lynch), citing Cunningham v. California (2007) 549 U.S. 270, 281.)
Under section 1170, subdivision (b), “a Sixth Amendment violation occurs when the trial
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court relies on unproven aggravating facts to impose an upper term sentence, even if
some other aggravating facts relied on have been properly established.” (Lynch, at
p. 768.)
In Erlinger v. United States (2024) 602 U.S. 821, the United States Supreme Court
held that the prior conviction exception to the Sixth Amendment does not “permit[] a
judge to find perhaps any fact related to a defendant’s past offenses.” (Id. at p. 837.)
Rather, “a judge may ‘do no more, consistent with the Sixth Amendment, than determine
what crime, with what elements, the defendant was convicted of.’ ” (Id. at p. 838.)
In People v. Wiley (2025) 17 Cal.5th 1069 (Wiley), our state high court applied
Erlinger and overruled previous decisions finding it constitutionally permissible for a
trial court to determine whether a defendant’s crimes were of increasing seriousness or
whether the defendant’s performance on probation was unsatisfactory. (Id. at pp. 1076,
1084-1085.) Wiley explained that, under Erlinger, the Sixth Amendment entitles a
defendant to a jury determination before a court may “rely on those aggravating facts to
find justification for an upper term sentence” (id. at p. 1085), unless the defendant
stipulates to their truth or waives a jury trial (id. at p. 1084).
A trial court’s reliance on aggravating circumstances found in violation of a
defendant’s jury trial right is “prejudicial unless an appellate court can conclude beyond a
reasonable doubt that a jury would have found true all of the aggravating facts relied
upon by the trial court to justify an upper term sentence, or that those facts were
otherwise proved true in compliance with the current statutory requirements. If the
reviewing court cannot so determine, applying the Chapman [v. California (1967)
386 U.S. 18] standard of review, the defendant is entitled to a remand for resentencing.”
(Lynch, supra, 16 Cal.5th at p. 768.) When assessing prejudice under Chapman, the
question is “ ‘whether any rational fact finder could have come to the opposite
conclusion.’ ” (Wiley, supra, 17 Cal.5th at p. 1090.)
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The California Supreme Court has cautioned about the difficulties in ascertaining
whether a jury would have found true an aggravating circumstance that calls for “ ‘ “an
imprecise quantitative or comparative evaluation of the facts.” ’ ” (Lynch, supra,
16 Cal.5th at pp. 775-776.) “ ‘The reviewing court cannot assume that the record reflects
all of the evidence that would have been presented to the jury, or that the defendant had
the same incentive and opportunity at a sentencing hearing to contest the aggravating
circumstance. [Citation.] … . “[T]o the extent a potential aggravating circumstance …
rests on a somewhat vague or subjective standard, it may be difficult for a reviewing
court to conclude with confidence that, had the issue been submitted to the jury, the jury
would have assessed the facts in the same manner as did the trial court.” ’ ” (Id. at
p. 775.)
B.
In this case, the trial court relied on the probation report to find that Linarez
Rodriguez had numerous prior convictions, had served prior prison terms, and was on
postrelease community supervision at the time of the current offense. (See Cal. Rules of
Court, rule 4.421(b)(2), (3) & (4).)2 The People concede that Linarez Rodriguez was
entitled to a jury trial on these factors, and they maintain that the matter should be
remanded because the record does not establish that the jury would have found true,
beyond a reasonable doubt, that Linarez Rodriguez’s prior convictions were “numerous”
under rule 4.421(b)(2).
We agree that remand is required. In Wiley, the California Supreme Court
declined to address whether defendants are entitled to have a jury determine if their prior
convictions are “ ‘numerous.’ ” (Wiley, supra, 17 Cal.5th at p. 1085, fn. 9.) We accept
the People’s position that, under the holdings and logic of Erlinger and Wiley, a jury
2 Undesignated rule references are to the California Rules of Court.
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finding on this aggravating fact is required (absent waiver or stipulation), as the question
whether a defendant has suffered “numerous” convictions (rule 4.421(b)(2)) “involves
something more than a narrow factual finding that the convictions were sustained and
what elements were required to prove them.” (Wiley, at p. 1084; see People v. Wright
(2025) 113 Cal.App.5th 832, 847 [error to deny trial by jury on whether defendant
suffered “ ‘numerous’ convictions in the past”].)
We also agree that the denial of Linarez Rodriguez’s right to a jury trial on this
factor was prejudicial. The present record suggests that he has one wardship adjudication
and four prior convictions (three felonies and one misdemeanor). On this record, we
cannot say with confidence how the jury would have assessed the “ ‘ “imprecise
quantitative” ’ ” question whether these convictions qualify as “numerous.” (Lynch,
supra, 16 Cal.5th at pp. 775-776.) Nor can we “discount the possibility that either
counsel in a contested jury trial” might have presented evidence affecting the jury’s
determination of the issue. (Wiley, supra, 17 Cal.5th at p. 1091.) Reversal of the
sentence is therefore required. (Lynch, at p. 743 [reversal and remand required unless
reviewing court concludes beyond a reasonable doubt that a jury “would have found true
all of the aggravating facts upon which the court relied to conclude the upper term was
justified” (italics added)].)
“Further proceedings on remand are to be conducted in accordance with the
current statutory requirements and the defendant given the opportunity for the jury trial,
of which he was deprived.” (Lynch, supra, 16 Cal.5th at p. 777.) “On remand, the
parties remain free to introduce at trial all relevant evidence to support or contest the
factual support for the aggravating circumstances set out in the California Rules of Court.
The court may rely on any properly proven aggravating facts, including prior convictions
or facts necessarily found by the jury to support a verdict on underlying counts and
enhancements. The court retains its discretion to impose an upper term sentence if it
concludes that one or more properly proved circumstances justify such a sentence.
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(§ 1170[, subd. ](b)(2).) If it cannot so conclude, it may impose no more than a middle
term.” (Id. at pp. 777-778.)
DISPOSITION
Linarez Rodriguez’s sentence is reversed, and the matter is remanded for a full
resentencing consistent with this opinion. In all other respects, the judgment is affirmed.
/s/
FEINBERG, J.
We concur:
/s/
HULL, Acting P. J.
/s/
MAURO, J.
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