P. v. Rodriguez

 

 

 

 

 

 

 

 

Filed 10/9/13  P. v. Rodriguez CA2/8

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>NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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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  This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
EIGHT

 

 
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THE PEOPLE,               Plaintiff and Respondent,               v.   JULIO RODRIGUEZ,               Defendant and Appellant.

B242515         (Los Angeles County       Super. Ct. No. PA066395)

 

 

            APPEAL from
a judgment of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County, Harvey Giss, Judge. 
Affirmed in part; remanded in part.

 

            Angela
Berry-Jacoby, 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, Steven D.
Matthews and Timothy M. Weiner, Deputy Attorneys General, for Plaintiff
and Respondent.

 

* * * * * *

            Julio
Rodriguez challenges the judgment of conviction for the href="http://www.mcmillanlaw.com/">first degree murder of Larry Duran and
for possession of a firearm by a felon. 
(Pen. Code, § 187 & former § 12021, subd. (a)(1).)  The evidence against him on both charges was
overwhelming, and he demonstrates no error. 
Respondent correctly identifies a sentencing error with respect to the
determinate term for possession of a firearm by a felon.  We affirm the judgment and remand the case
for resentencing on the possession conviction.

>FACTS AND PROCEDURE

            In
November 2009, defendant lived with his fiancée Kristian M. and dated his
girlfriend Sandra H.  Defendant believed
Kristian cheated on him with Duran and beginning in June 2009, defendant
accused Kristian of the perceived misconduct.  Starting in approximately September 2009,
defendant called and sent texts to Duran’s fiancée Lisa A. warning her that
Duran was “messing with” Kristian.  These
calls and texts were made from Duran’s cell phone, which defendant previously
had stolen from Duran.  Defendant called
and texted numerous times, sometimes daily and sometimes more than once a
day.  In addition to Kristian and Lisa,
defendant told Duran’s colleagues Manuel R. and Irma R. that Kristian and Duran
were romantically involved.  Defendant
told Irma that he wanted to fight Duran so that everything would “be over.”

            On
November 28, 2009,
defendant went to the barber shop where Duran worked.  Defendant invited Irma on date, telling her
they needed to go out that day because “after no one will want to talk to
me.”  At defendant’s urging, Duran left
the barber shop with defendant, who drove a grey Ford Focus he had borrowed
from Sandra.  Duran’s colleague Eric S.
understood that defendant and Duran were leaving the barber shop to fight.  Shortly afterwards, Duran was found dead in
an alley close to the barber shop.  Duran
died of multiple gunshot wounds.

            Two
people, who had been moving boxes in the alley, heard shots in rapid succession
and then saw a grey or silver car speed out of the alley where Duran’s body was
found.href="#_ftn1" name="_ftnref1" title="">^[1]  A few days after Duran was killed, Sandra
reported her car missing, and she also reported that a gun that had been inside
the vehicle was missing.  The gun taken
from Sandra’s car was not the one used to shoot Duran.  Sandra’s car eventually was recovered, but
the gun was never returned to Sandra.

            Two
days after Duran’s killing, on November
30, 2009, defendant sought shelter from his former neighbor Carlos
T.  Defendant told Carlos that he needed
a place to stay because police were searching for him.  Defendant was carrying a firearm.  Carlos did not allow defendant to stay in his
home, in part, because defendant was carrying a firearm.  Defendant then fled to El
Salvador.

            After
Duran’s killing, Lisa went to the coroner’s office and found the cell phone
defendant had stolen from Duran in Duran’s pocket.  When defendant’s vehicle was searched, the
following letter in his handwriting was found: 
“To my baby girls, I love you girls so much.  I am sorry if I’m not around and sorry for
letting Kristian get to me.  She’s the
one that made me go away.  Please don’t
ever play with someone’s head.  You girls
will be good and very pretty and become someone in life if you girls . . . only
knew why I did kill myself.  It’s because
I know no matter if cops pull me over or they took me in I would not see you
girls again for more than 30 years.  So I
did the same thing that they would do, take me away from you girls.  I love you girls.  I will always be in your hearts.”

            Sandra
assisted authorities in persuading defendant to return to Los Angeles, where he
was arrested at the airport.  Prior to
his arrest, he wore a baseball cap, borrowed sunglasses, and a borrowed women’s
jacket.

            The
parties stipulated defendant was convicted of a felony prior to November 28,
2009.

            Defendant’s
defense was that tire tracks found in the alley where Duran died did not match
Sandra’s Ford Focus.  Defendant’s expert
acknowledged that the Ford could have travelled through the alley without leaving
tire tracks.  Additionally, defendant’s
friend testified that defendant’s suicide note was found before October 31,
2009.

            Jurors
convicted defendant of first degree
murder and found true the allegation that defendant personally and
intentionally discharged a firearm causing death to Duran within the meaning of
Penal Code section 12022.53, subdivision (d). 
Jurors also found true the allegation that defendant, a felon, possessed
a firearm.  The court sentenced defendant
to a 50-year-to-life indeterminate term for the first degree murder and the
finding defendant personally and intentionally discharged a firearm causing
death.  The court sentenced defendant to
eight months for the possession charge, which was comprised of one-third the
midterm for that offense.  Defendant
timely appealed.

DISCUSSION

            Defendant
argues that the murder charge should have been tried separately from the
possession charge.  Defendant also argues
the prosecutor committed prejudicial misconduct.  Respondent argues the trial court erred in
calculating defendant’s determinate sentence. 
As we explain, only respondent’s argument has merit.

>1.  Severance

            The
trial court found that it would be inappropriate to sever the possession charge
because evidence to prove the two charges overlapped.  Appellant argues severance was necessary to
protect his due process rights.  As we
explain, we disagree.

            Joinder of
charges is “preferred” because it promotes efficiency.  (People
v. Hartsch (2010) 49 Cal.4th 472, 493 (Hartsch).)  “A defendant, to establish error in a trial
court’s ruling declining to sever properly joined charges, must make a ‘“clear
showing of prejudice to establish that the trial court abused its discretion .
. . .”’  [Citations.]  A trial court’s denial of a motion to sever
properly joined charged offenses amounts to a prejudicial abuse of discretion
only if that ruling ‘“‘“‘falls outside the bounds of reason.’”’”’  [Citation.]” 
(People v. Soper (2009) 45
Cal.4th 759, 774 (Soper).)

            To
determine whether severance was required, “[f]irst, we consider the
cross-admissibility of the evidence in hypothetical separate trials.  [Citation.] 
If the evidence underlying the charges in question would be
cross-admissible, that factor alone is normally sufficient to dispel any
suggestion of prejudice and to justify a trial court’s refusal to sever
properly joined charges. 
[Citation.]  Moreover, even if the
evidence underlying these charges would not be cross-admissible in hypothetical
separate trials, that determination would not itself establish prejudice or an
abuse of discretion by the trial court in declining to sever properly joined
charges.  [Citation.]”  (Soper,
supra, 45 Cal.4th at pp. 774-775,
italics omitted.)  If a reviewing court
determines the evidence underlying properly joined charges would not be
cross-admissible, it then considers “‘whether the benefits of joinder were
sufficiently substantial to outweigh the possible “spill-over” effect of the
“other-crimes” evidence on the jury in its consideration of the evidence of
defendant’s guilt of each set of offenses.’ 
[Citations.]  In making that
assessment, [the reviewing court considers] three additional factors, any of
which—combined with [the] earlier determination of absence of cross-admissibility—might
establish an abuse of the trial court’s discretion:  (1) whether some of the charges are
particularly likely to inflame the jury against the defendant; (2) whether
a weak case has been joined with a strong case or another weak case so that the
totality of the evidence may alter the outcome as to some or all of the
charges; or (3) whether one of the charges (but not another) is a capital
offense, or the joinder of the charges converts the matter into a capital
case.”  (Id. at p. 775, italics omitted.) 
The reviewing court then balances the potential for prejudice to the
defendant from a trial of properly joined charges against the countervailing
benefits to the state, bearing in mind that the state’s interest in joinder
gives a trial court broader discretion to deny a motion to sever properly
joined charges than it has to admit evidence of uncharged offenses in a
separate trial.  (Id. at p. 775 & fn. 7.)

            Here,
evidence would have been cross-admissible in hypothetically separate
trials.  The possession offense and the
murder were connected.  The prosecutor
argued that the possession charge was based either on defendant’s use of a
firearm to kill Duran – which was exactly the same as the murder charge – or
defendant’s possession of a gun when he spoke to Carlos.  The latter is related to the murder because
defendant spoke to Carlos to request a place to hide from police.  Evidence of the murder weapon obviously was
cross-admissible and evidence of the conversation with Carlos was relevant because
it showed defendant’s effort to flee from officers after the murder.

            Even if the
evidence was not cross-admissible in hypothetically separate trials, the
benefits of joinder outweighed the possible “spill over” effect of other crimes
evidence.  The joinder of the possession
of a firearm was not likely to inflame the jury against the defendant in a
murder trial, especially because the murder was committed with a firearm.  A strong case was not joined with a weak
case.  Evidence of both the murder and the
gun charge was overwhelming and defense counsel even admitted the latter.href="#_ftn2" name="_ftnref2" title="">^[2]  The following evidence overwhelmingly
supported the first degree murder conviction. 
For months, defendant obsessed about his belief that his fiancée was
unfaithful with Duran.  Defendant went to
Duran’s place of work to fight him. 
Duran was seen entering the vehicle defendant was driving just before
the killing and the vehicle defendant was driving was seen speeding out of the
alley where Duran’s body was found. 
Defendant left a note suggesting that he would be put away for a long
time.  Defendant sought shelter from
Carlos to hide from police and then fled to El Salvador.  When he returned to Los Angeles, defendant
borrowed clothing to disguise his appearance.

            Finally,
this was not a capital case.  Therefore
the factor militating severance in capital cases does not apply here.  Thus, all of the factors favor trying the
charges together.  Defendant demonstrates
no error. ^{href="#_ftn3"
name="_ftnref3" title="">[3]}

>2.  Alleged Prosecutorial Misconduct

            Defendant
argues the prosecutor committed misconduct and that the prejudicial nature of
the misconduct requires reversal.  We
find no misconduct.

            Misconduct
by the prosecutor violates the federal Constitution when it “‘“‘comprises a
pattern of conduct “so egregious that it infects the trial with such unfairness
as to make the conviction a denial of due process.”’”’” (People v. Hill (1998) 17 Cal.4th 800, 819.)  “‘Conduct by a prosecutor that does not
render a criminal trial fundamentally unfair is prosecutorial misconduct under
state law only if it involves “‘“the use of deceptive or reprehensible methods
to attempt to persuade either the court or the jury.”’”  [Citation.]’ 
[Citation.]”  (>Ibid.)

            “‘“‘[T]he
prosecution has broad discretion to state its views as to what the evidence
shows and what inferences may be drawn therefrom.’”  [Citation.]’ 
[Citation.]  ‘When we review a
claim of prosecutorial remarks constituting misconduct, we examine whether
there is a reasonable likelihood that the jury would have understood the remark
to cause the mischief complained of. 
[Citation.]’  [Citation.]  ‘To prevail on a claim of prosecutorial
misconduct based on remarks to the jury, the defendant must show a reasonable
likelihood the jury understood or applied the complained-of comments in an
improper or erroneous manner. 
[Citations.]  In conducting this
inquiry, we “do not lightly infer” that the jury drew the most damaging rather
than the least damaging meaning from the prosecutor’s statements.’  [Citation.]” 
(People v. Spector (2011) 194
Cal.App.4th 1335, 1403.)

            “‘“‘[A]
defendant may not complain on appeal of prosecutorial misconduct unless in a
timely fashion—and on the same ground—the defendant made an assignment of
misconduct and requested that the jury be admonished to disregard the
impropriety.  [Citation.]’”’  [Citation.] 
A defendant who fails to object at trial ‘waive[s] any error or
misconduct emanating from the prosecutor’s argument that could have been cured
by a timely admonition.’ 
[Citation.]”  (>People v. Spector, supra, 194 Cal.App.4th at pp. 1402-1403.)

>a. 
Alleged Coaching

            Defendant
argues the prosecutor coached a witness on how to answer a question posed by
the judge.  Defendant did not raise this
issue when the alleged misconduct occurred, but instead raised it only in his
new trial motion.  The issue therefore is
forfeited.href="#_ftn4" name="_ftnref4" title="">^[4]  (People
v. Spector, supra, 194
Cal.App.4th at p. 1403.)

            Even
if the issue were cognizable defendant demonstrates no error.  In the complained of colloquy, the trial
court asked Manuel whether the cell phone he testified Duran left at his
employment prior to entering defendant’s car was the one in a prior prosecution
exhibit.  The prosecutor said that the
phone in the exhibit was found in Duran’s pocket at the coroner’s, which Lisa
later confirmed in her testimony.  The
court ordered the prosecutor’s statement stricken and asked Manuel about the
phone.  Manuel testified the phone Duran
had on November 28 was not the same one defendant had taken from Duran.

            The
trial court found that the prosecutor was not trying to coach Manuel when she
responded to the court’s question.  The
court also found that even if the prosecutor had attempted to coach Manuel, he
was hostile to the prosecution and would not have answered in a manner to
accommodate the prosecutor.

            The
record supports the trial court’s findings. 
The record suggests the prosecutor was surprised by the court’s question
and was responding to the court. 
Additionally, at the preliminary hearing, Manuel distinguished between
the cell phone defendant took from Duran and the cell phone Duran left at his
worksite prior to leaving with defendant. 
Thus, defendant’s inference that Manuel testified to accommodate the
prosecutor is not supported as it was clear Manuel had previously distinguished
between the two phones.

            Assuming
the prosecutor committed misconduct, such misconduct was harmless beyond a
reasonable doubt.  The cell phone was
relevant in that it bolstered Lisa’s testimony that defendant stole Duran’s
cell phone and called her from it.  But
the evidence was not critical to the prosecution’s case and could not have
affected the verdict.  Other evidence
overwhelmingly showed defendant believed Duran and Kristian had a relationship
including defendant’s statements to Duran’s colleagues, defendant’s statements
to Kristian, and defendant’s suicide note. 
Defendant demonstrates no prejudice from the alleged misconduct.

>b. 
Alleged Exclusion of Defendant’s Family

            Defendant
argues that the prosecutor improperly attempted to exclude his family members
from the trial.  The record does not
support his contention.

            Defendant’s
statement that his mother was placed on a witness list but not called at trial
demonstrates no impropriety.  He does not
show the prosecutor placed defendant’s mother on a witness list in bad faith,
and no law required the prosecutor to call every witness on her witness list.

            During
trial, defense counsel told the court that two individuals removed by police
were relatives of his client.  According
to the prosecutor, the officers did not tell the individuals they had to leave
the courtroom.  Instead, the individuals
left after defense counsel said something to defendant’s ex-mother-in-law.  The court indicated it would conduct a
hearing after trial if requested.  No
such request was made and the issue is now forfeited.  The record as it stands does not support
either the statement that the individuals were removed by police or defendant’s
statement that the individuals who left the courtroom were his family members.

            Finally,
defendant states that the prosecutor sought to remove his ex-mother-in law,
which is accurate but moot because the trial court denied that request.  In short, defendant demonstrates no person
was improperly excluded from his trial.

>c. 
Closing Argument

            Defendant
argues the prosecutor committed misconduct during her closing argument.  Defendant forfeited this claim of error by
failing to raise it in the trial court. 
(People v. Spector, supra, 194
Cal.App.4th at pp. 1402-1403.)  In any
event, defendant’s argument lacks merit.

            The prosecutor argued as
follows:  “Now ladies and gentlemen,
look, she [Sandra] says she’s bought a gun. 
She’s got a gun in the back of this car. 
Now it’s not the gun that was used in the murder, but I don’t know why
she would buy a gun.  You heard her say
she doesn’t know anything about guns.” 
The prosecutor continued:  “she
said she didn’t buy the gun at defendant’s request; but I ask you, ladies and
gentlemen why would she buy a gun like that?”

            This argument indicates the
prosecutor repeated Sandra’s testimony that she did not buy the gun at
defendant’s request but questioned that testimony.  Such questioning was not improper and jurors
could decide whether Sandra’s testimony was credible.  (People
v. Young (2005) 34 Cal.4th 1149, 1192 [“prosecutor is entitled to comment
on the credibility of witnesses based on the evidence adduced at trial”].)  Defendant’s claim that the prosecutor
referred to facts that were not in evidence with respect to the gun is
incorrect.  In any event, any error in
the prosecutor’s argument about Sandra’s gun was harmless beyond a reasonable
doubt.  It was stipulated that Sandra’s
gun was not used in the murder, and defendant’s counsel conceded that defendant
had a gun when he spoke to Carlos two days after Duran’s death.  Whether Sandra purchased the gun for
defendant or not was not material, and the prosecutor’s argument regarding it
was harmless beyond a reasonable doubt.

            Finally
defendant argues that a portion of the prosecutor’s rebuttal argument constituted
misconduct:  She argued:  “If he didn’t commit it, it’s not
guilty.  If he might have committed it,
it’s not guilty.  If he could have
committed it, it’s not guilty.  If it’s
probably he committed it, it’s not guilty. 
Not sure, but very likely[,] it’s not guilty.  [¶] 
Then I just hang my hat right now. 
I retire.  I quit because there
would be no way to convict anyone. 
[¶]  It’s a doubt based on reason,
reasonable person standard, what is reasonable and what is not reasonable.  That’s all; and the instruction itself tells
you it is not beyond any doubt because everything in human affairs is subject
to some doubt and it’s not imaginary doubt. 
[¶]  You know when counsel gets up
here and says the only way this could make sense is if someone else did it,
that’s imaginary doubt.”  According to
defendant, “the prosecutor was not only trying to discredit the defense, but
also was trivializing the reasonable doubt standard . . . at the same time.”

            “Prosecutorial
argument that denigrates defense counsel directs the jury’s attention away from
the evidence and is therefore improper. 
[Citation.]  In evaluating a claim
of such misconduct, we determine whether the prosecutor’s comments were a fair
response to defense counsel’s remarks. 
[Citation.]”  (>People v. Young, supra, 34 Cal.4th 1149, 1189.) 
Here, the prosecutor was responding to defense counsel’s argument that
the evidence raised a reasonable doubt as to defendant’s guilt and if jurors
had any question they were required to acquit defendant.  The prosecutor described the correct standard
– reasonable doubt -- and properly argued that the doubt defendant sought to
invoke was not reasonable.  While the
prelude to the specific standard may have been unnecessary, the challenged
argument neither infected the trial with unfairness nor constituted the use of
reprehensible or deceptive methods.

            In
any event, even if the closing argument amounted to misconduct the argument was
harmless beyond a reasonable doubt. 
Jurors were properly instructed on reasonable doubt and we must presume
jurors followed the court’s instructions. ^{href="#_ftn5" name="_ftnref5" title="">[5]}  (People
v. Osband (1996) 13 Cal.4th 622, 717.) 
Moreover, this was not a close case. 
Defendant admitted one of the charges and evidence of the other was
overwhelming.

>3.  Sentence

            Respondent
argues that the court erred in sentencing defendant to one-third the midterm
for the possession of a firearm charge. 
We agree.

            In
the context of determinate sentencing with multiple convictions, the court
imposes a principal term and a subordinate term.  (Pen. Code, § 1170.1, subd. (a).)  The subordinate term consists of one-third
the middle term of imprisonment.  (>Ibid.) 
That is exactly what the court did in this case.

            But
here defendant was not convicted of multiple crimes calling for determinate term
sentences.  Instead he was convicted of
one crime calling for an indeterminate term (murder) and one crime calling for
a determinate term (possession of a firearm). 
Sentencing defendant for the indeterminate term must be separate from
sentencing him for the determinate term. 
(People v. Neely (2009) 176
Cal.App.4th 787, 797.)  Thus, the
methodology of imposing sentence for persons convicted of multiple crimes
calling for determinate sentences is inapplicable here.  (Ibid.)

            Defendant
should have been sentenced to a separate determinate term for the possession
charge, not a subordinate term.  The case
therefore must be remanded to the trial court to exercise its discretion in
sentencing defendant to the possession of a firearm by a felon charge.

DISPOSITION

            The
case is remanded to the trial court for resentencing on the possession of a
firearm by a felon offense.  In all other
respects, the judgment is affirmed.

 

 

                                                                                    FLIER,
J.

WE CONCUR:

 

 

            RUBIN, Acting P. J.

 

 

            GRIMES, J.