P. v. Rodriguez
Filed 2/24/12 P. v. Rodriguez CA5
Reposted to provide correct version
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.
FIFTH
APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
DAVID ARNOLD RODRIGUEZ, JR.,
Defendant and
Appellant.
F061225
(Super.
Ct. No. 1212348)
THE COURT
name="_ftnref1" title="">*
APPEAL
from a judgment of the Superior Court
of
County. Hurl William
Johnson III, John G. Whiteside and John D. Freeland, Judges.
John F.
Schuck, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of
the State Attorney General, Sacramento, California,
for Plaintiff and Respondent.
-ooOoo-
David Arnold Rodriguez, Jr., appeals from the trial
court’s order finding that he had violated his probation in this case and
sentencing him to prison. Appellate
counsel found no appealable issues and requested this court conduct an
pursuant to People v. Wende (1979) 25
Cal.3d 436. After reviewing the record,
we agree with appellate counsel that there are no appealable issues and affirm
the judgment.
FACTUAL AND PROCEDURAL SUMMARY
On July 27, 2006, a complaint was
filed charging Rodriguez with making a criminal threat in violation of Penal
Code section 422,
title="">[1] a felony, and violating a court order in violation
of section 273.6. In addition, the
complaint alleged that Rodriguez had suffered two prior convictions that
constituted strikes within the meaning of section 667, subdivisions (b)-(i).
Rodriguez
pled no contest to the lesser felony charge of threatening a witness, and the
trial court struck the prior conviction
allegations. The trial court
suspended the sentence and placed Rodriguez on formal probation for a period of
three years. One of the conditions of
probation required Rodriguez to refrain from annoying, harassing, molesting,
stalking, striking, assaulting, threatening, battering, or sexually assaulting
the victim, C.
On April 13, 2007, Rodriguez was
arrested and charged with numerous crimes, including the attempted murder of C.
(§§ 187, 664), and spousal battery on C. (§ 273.5). (People
v. Rodriguez (Super. Ct. Stanislaus County, No. 1226072.) On April 18,
2007, a petition was filed alleging that Rodriguez violated the
terms of his probation as a result of these allegations.
The record
contains three motions made by Rodriguez pursuant to People v. Marsden (1970) 2 Cal.3d 118. The record suggests that Rodriguez made
several other similar motions. In each
motion contained in the record Rodriguez expressed his dissatisfaction with
appointed counsel, first the public defender’s office, and in the final motion
conflict counsel, because the attorneys refused to conduct investigation that
he deemed essential to his defense. The
attorneys explained that the information on which Rodriguez was focused would
not be admissible for various reasons, and they determined as a matter of trial
tactics to not conduct the investigation Rodriguez sought. The trial court denied each motion, correctly
noting that Rodriguez’s complaints related to a choice of tactics, and the
attorney, not the defendant, was charged with making tactical decisions. (See People v. Williams
(1970) 2 Cal.3d 894, 905-906 [disagreement between defendant and attorney on
tactical choices—such as whether to call witnesses—is within province of
attorney and not a basis for substitution of counsel].) Rodriguez eventually made a motion to
represent himself pursuant to Faretta v.
California (1975) 422 U.S.
806. The trial court granted this motion.
After the
jury in case No. 1226072 found Rodriguez guilty of the attempted murder of
C., the trial court found that Rodriguez had violated the terms and conditions
of probation and sentenced him to the midterm of three years in prison, to run
concurrent to the sentence in the attempted murder case.
Rodriguez
appealed from the judgments in both cases.
We affirmed the judgment in the attempted murder case (
companion to this case. Indeed,
Rodriguez did not directly challenge the attempted murder conviction of C. in
that appeal. He did make two arguments
about evidentiary rulings. We concluded
that neither argument had merit and, regardless of the issue of merit,
Rodriguez could not demonstrate the rulings had resulted in a
DISCUSSION
Rodriguez’s
counsel has filed a brief in this case pursuant to People v. Wende, supra,
25 Cal.3d 436 asserting that his review of the record did not reveal any
appealable issue and requested this court independently examine the
record. Rodriguez was advised of
counsel’s conclusions and informed of his right to submit supplemental
briefing.
In his
supplemental briefing, Rodriguez raises numerous arguments related to the
judgment in the attempted murder conviction.
These issues, regardless of merit, are irrelevant to the issue of
whether he violated his probation and will not be addressed further.
We have
independently reviewed the record and agree with trial counsel that there are
no reasonably arguable legal or factual issues.
Therefore, the judgment will be affirmed.
name="_ftn1" title="">*Before
Dawson, Acting P.J., Poochigian, J.
and Detjen, J.
name="_ftn2" title="">[1]All
statutory references are to the Penal Code unless otherwise stated.
