P. v. Rodriguez
Filed 7/25/13 P. v. Rodriguez CA2/3
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and parties from citing or relying on opinions not certified for publication or
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
FABIAN JAVON RODRIGUEZ,
Defendant and Appellant.
B240769
(Los Angeles
County
Super. Ct.
No. YA079000)
APPEAL from a judgment of the Superior Court of
County, Lauren Weis Birnstein and Victor L. Wright,
Judges. Affirmed.
Edward J. Horowitz, 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,
Chung L. Mar and Idan Ivri, Deputy Attorneys General, for Plaintiff and
Respondent.
INTRODUCTION
Before
trial, defendant and appellant Fabian Javon Rodriguez moved to suppress
evidence of a gun and ammunition. The
trial court denied the motion, and a jury found defendant guilty of corporal
of a firearm by a felon. On appeal, he
contends that the trial court erred by denying the suppression motion and,
also, by denying his Romero
We reject both contentions and affirm the judgment.
FACTUAL AND PROCEDURAL BACKBROUND
I. Factual background.
In August
2010, Valerie Nunez was living with defendant, and she was pregnant with their
child. Sometime that month, Nunez’s
mother, Renee Baca, saw bruising under Nunez’s eyes. Baca later noticed that Nunez had bloodshot
eyes and finger marks on her neck. At
first, Nunez wouldn’t tell her mother what happened, but she finally told Baca
that defendant was responsible for her injuries.
About two
weeks later, on August 28, 2010,
defendant drove to Baca’s house. Nunez
went outside to talk to him. Nunez
testified that she got into the car and they went for a drive. Although she told a police officer that
defendant locked the door and pulled out a gun when she got into the car and
said she wasn’t going anywhere, she was lying.
pulled her arm, leaving a red mark.
Defendant
returned Nunez home on September 1,
2010. Baca called 911 and
reported that defendant had kidnapped her daughter and brought her back. He was violent and had abused Nunez, and he
had a loaded gun under the hood of his car.
Officer
Sanza responded to the 911 call. Nunez
told Sanza that defendant had come to the house on August 28, 2010 and convinced her to get into the
car. When she did, he pointed a gun at
her and grabbed her arm when she tried to open the door. She asked him to let her out, but he told her
he was “ ‘kidnapping’ †her.
Continuing to point the gun at her stomach, defendant drove away. The next day, August 29, 2010, defendant took Nunez to a fast food
restaurant and told her that if she tried to escape he would kill her and
anyone in the area. While Nunez was with
defendant, he accused her of cheating on him and held a gun to her
forehead. When she tried to move, defendant
put a pillow over her face and pressed the gun against the pillow. Defendant took Nunez to her mother’s house on
September 1 to get some of her belongings.
II. Procedural background.
An amended
information filed on December 15,
2011 alleged: count 1,
corporal injury to cohabitant (Pen. Code, § 273.5, subd. (a));
count 2, kidnapping (§ 207, subd. (a)); counts 3 and 5,
245, subd. (b)); count 4, criminal threats (§ 422); and count 6,
possession of a firearm by a felon (former § 12021, subd. (a)(1)).
On January 19, 2012, a jury found
defendant guilty of count 1, corporal injury to a cohabitant (§ 273.5, subd.
(a)) and of count 6, possession of a firearm by a felon (former § 12021,
subd. (a)(1)). The jury acquitted
defendant of all other counts, including lesser included offenses.
After
denying defendant’s Romero motion,
the trial court, on April 12, 2012, sentenced defendant, on count 1, to the
high term of four years, doubled to eight years, plus a consecutive one-year
term under section 667.5, subdivision (b).
The court sentenced him to a consecutive 16 months
on count 6. His total sentence therefore
was 10 years 4 months.
DISCUSSION
I. The search and seizure did not violate
the Fourth Amendment.
A
warrantless search of defendant’s car revealed a gun and ammunition. Defendant contends that this evidence should
have been suppressed, having resulted from an illegal search, and therefore the
judgment on count 6, felon in possession of a firearm should be reversed. We disagree.
A. Additional
facts relevant to the search and seizure.
Before
trial, Rodriguez moved to suppress the gun and ammunition found after the
warrantless search of his car.
name="_ftnref7" title="">[7] At the hearing on the motion, the 911
dispatcher, Lavonia Lampkin, and Officer Daniel Ragazzo testified.
Lampkin
received a 911 call on September 1,
2010.
title="">[8] The 911 caller, Baca, said that her
daughter’s boyfriend had “kidnapped her [daughter] the other day and he brought
her back today.†The boyfriend was
violent and had abused Baca’s daughter.
The boyfriend was in his car, a baby blue Acura, and he had a gun
underneath the car’s hood. Based on that
call, Lampkin “generated [a call] for service,†namely, she dispatched the
information verbally and in writing to police officers.
was loaded. All officers on patrol
received the information verbally and in writing on their MDTs. Officers were also notified that the call was
a high priority and immediate response was needed.
Officer Ragazzo testified that he
and his partner, Officer Sanza, responded to the call of a “male with a
gun.†The call history said the male
Hispanic, identified as defendant, was the resident’s boyfriend and he’d
kidnapped her a few days before.
Defendant was in an Acura, and he had a loaded gun under the hood.
When
Ragazzo arrived at the scene, he saw defendant in an Acura, which was parked in
front of the residence.
name="_ftnref10" title="">[10] The officers detained him. While Ragazzo stayed with defendant, Sanza
went inside the house to talk to the reporting party. After the scene was secure, Ragazzo also went
inside the house. He was told there was
a gun under the hood of the car and defendant used the gun in narcotic transactions. Having decided to arrest defendant, Ragazzo
went back outside. The hood of the car
was open, although Ragazzo did not know who opened it. Raggazo looked into the engine compartment
and saw a gun in plain view. Removing
the gun, Ragazzo checked it to determine if it was loaded: it was, with 13 rounds. He removed the rounds so that the gun
wouldn’t discharge, and put it in his patrol vehicle.
After
hearing this evidence, the trial court denied the suppression motion on the
ground that the automobile exception to the general warrant requirement
applied. The court said: “[W]e have a citizen informant, not somebody
that calls the police and refuses to give their identity or name, some very
specific details upon which to base the detention of a vehicle and the person
in it, the name of the person . . . [,] the description of the
vehicle, the Acura, the color of the car, the fact that he is sitting inside
the vehicle at a particular location, and the fact that there is a specific gun
and it is loaded and it is in the engine compartment––or under the hood anyway
is what was said. So those are very,
very specific facts. [¶] So when the officers, I believe, see all of
that . . . corroborated––well, all the facts that they see seem to be
in line with all the information that they had from the dispatch. [¶]
. . . [¶] . . . And we have to assume that they all got the
call and it went out both verbally and on the MDT. [¶]
. . . [¶] And I believe based on [the
based on the automobile exception, I believe there was probable cause and that
the search was reasonable under these circumstances to put any officer to open
the hood of that car.â€
B. Probable cause supported the
warrantless search of defendant’s car.
The Fourth
Amendment guarantees the right to be free from unreasonable searches and
seizures by law enforcement and other government officials. (U.S.
Const., 4th Amend.) Subject to
“ ‘well-delineated exceptions,’ †warrantless searches are presumed
to be unreasonable. (
see also People v.
demonstrating a legal justification for a warrantless search. (People
v. Evans (2011) 200 Cal.App.4th 735, 742; Rogers, at p. 1156.) “When reviewing the denial of a suppression
motion, we defer to the trial court’s express or implied factual findings if
supported by substantial evidence, but exercise our independent judgment to
determine whether, on the facts found, the search or seizure was reasonable
under the Fourth Amendment.
[Citations.] We will affirm the
trial court’s ruling if it is correct on any theory of law applicable to the
case, even if for reasons different than those given by the trial court.†(Evans,
at p. 742; see also People v. Glaser
(1995) 11 Cal.4th 354, 362.)
name="_ftnref11" title="">[11]
Although
the parties here focus on whether exigent circumstances justified the
warrantless search of defendant’s car,
we find that the search clearly falls under the automobile exception to the
warrant requirement. (See generally,
132.) Under that exception, “police who
have probable cause to believe a lawfully stopped vehicle contains evidence of
criminal activity or contraband may conduct a warrantless search of any area of
the vehicle in which the evidence might be found. [Citations.]
Such a search ‘is not unreasonable if based on facts that would justify
the issuance of a warrant, even though a warrant has not actually been
obtained.’ [Citation.] . . . ‘If probable cause justifies the search of a
lawfully stopped vehicle, it justifies the search of every part of the vehicle
and its contents that may conceal the object of the search.’ [Citations.]â€
(People v. Evans, supra, 200
Cal.App.4th at p. 753; see also United
States v. Ross (1982) 456 U.S. 798, 825.)
The scope of the search is defined by the object of the search and the
places in which there is probable cause to believe contraband may be
found. (Ross, at p. 824.)
“Probable cause is defined as ‘ “
‘a fair probability that contraband or evidence of a crime will be
found.’ †’ [Citations.] Probable cause to search thus exists when the
‘known facts and circumstances are sufficient to warrant a [person] of
reasonable prudence in the belief that contraband or evidence of a crime will
be found . . . .’
[Citations.] The standard is a
‘ “ ‘fluid concept—turning on the assessment of probabilities in
particular factual contexts,’ †’ and is incapable of precise definition. [Citations.]
A probable cause determination must be based on objective facts.†(People
v. Evans, supra, 200 Cal.App.4th at p. 753.)
There was
probable cause to search defendant’s parked car without a warrant.
evidence of criminal activity were known to the officers before they opened the
hood of defendant’s car. Those facts and
circumstances, relayed by the 911 caller, included: defendant had kidnapped Nunez and just
brought her back home; defendant was violent and abusive; and defendant had a
gun under the car’s hood. The 911
caller’s report was corroborated. When
officers arrived, they saw a Hispanic man (defendant) sitting in a blue Acura,
just as the caller described. Given that
the 911 caller accurately described the suspect and his car, it was reasonable
for officers to believe that the caller was similarly accurate about there
being a gun under the car’s hood. Thus,
the facts and circumstances known to the officers when they arrived at the
scene, which were corroborated by the scene itself, were sufficient to justify
searching defendant’s car without a warrant.
Defendant
fails to squarely address the automobile exception and instead cites
support his argument that the search here violated the Fourth Amendment. Gant held
that police may search a vehicle incident to an occupant’s arrest if the
arrestee could access the car or if evidence of the offense for which he or she
was arrested might be found in the car.
(Id. at pp. 344, 351.) Gant,
however, applies to searches incident to
arrest. The search here was
conducted before defendant was
arrested, a point no party disputes, and therefore it was not a search incident
to arrest. Gant is not on point.
II. The trial court did not abuse its
discretion by denying defendant’s Romero motion.
Defendant
contends that the trial court considered impermissible factors in denying his
14-year old robbery committed in New York.
In the furtherance of justice, a
trial court may strike or dismiss a prior conviction allegation. (§ 1385; Romero,
supra, 13 Cal.4th at p. 504.) A
trial court’s refusal to strike a prior conviction allegation is reviewed under
the deferential abuse of discretion standard.
(People v. Carmony (2004) 33
Cal.4th 367, 375.) The party seeking
reversal must therefore “ ‘clearly show that the sentencing decision was
irrational or arbitrary. [Citation.]’ â€
(People v. Superior Court
(Alvarez) (1997) 14 Cal.4th 968, 977.)
It is not enough to show that reasonable people might disagree about
whether to strike a prior conviction. (
justify a finding that a career criminal is outside the Three Strikes law. (Ibid.) Therefore, “the circumstances where no
reasonable people could disagree that the criminal falls outside the spirit of
the three strikes scheme must be even more extraordinary.†(Ibid.)
When considering whether to strike
prior convictions, the relevant factors a court must consider are “whether, in
light of the nature and circumstances of his present felonies and prior serious
and/or violent felony convictions, and the particulars of his background,
character, and prospects, the defendant may be deemed outside the scheme’s
spirit, in whole or in part, and hence should be treated as though he had not
previously been convicted of one or more serious and/or violent felonies.†(People
v. Williams (1998) 17 Cal.4th 148, 161.)
The Three Strikes law “not only establishes a sentencing norm, it carefully
circumscribes the trial court’s power to depart from this
norm. . . . [T]he law
creates a strong presumption that any sentence that conforms to these
sentencing norms is both rational and proper.â€
(People v. Carmony, supra, 33
Cal.4th at p. 378.)
Defendant
argues that the trial court here first abused its discretion by
“exaggerat[ing]†the “ ‘nature and circumstances’ †of his violation
of section 273.5, corporal injury to his cohabitant, Nunez, by referring to it
as a “ ‘violent felony.’ †The
court said:
·
“[J]ust a bare three years, seven months later
[after committing the robbery in New York], he––there he is with a firearm
again committing a violent felony.â€
·
“So this court is very concerned with a
defendant who has two prior violent crimes, violent robberies, with use and
then a new violent crime within four years of getting out of prison where, you
know, he already––it shows to me that he hasn’t learned his lesson and that he
is a danger to society.â€
·
“This case certainly involves a violent felony. I regard domestic violence as a violent
felony. It’s not listed in the class of
so-called violent felonies in the Penal Code of serious felonies. If they had found the use, it certainly would
have been. [¶] But it is a case of violence. And in this case, he did cause injuries that
lasted some days or a week later when the mother saw [her] injuries.â€
Section 667.5 lists “violent felonies,†including, for
example, murder, mayhem, and rape. A
violation of section 273.5 is not a “violent felony†as defined by that
section. The trial court here, however,
was not referring to section 667.5 when it repeatedly described defendant’s
crime as a “violent†one. In fact, the
trial court acknowledged it was not a violent crime under section 667.5. Rather, the court considered it a “case of
violence†because defendant injured Nunez, not because of a mistaken belief
defendant’s crime fell under section 667.5.
The trial court was clearly considering the nature and circumstances of
defendant’s present felony (People v.
Williams, supra, 17 Cal.4th at p. 161), and finding that its violent nature
militated against striking the prior.
The court therefore did not willfully ignore the Legislature’s
determination that corporal injury to a cohabitant is not a violent felony
under section 667.5 and substitute its own judgment that the offense should be
so classified.
Second,
defendant contends that the trial court substituted its factual conclusions for
the jury’s. Defendant bases his
contention on these comments: “
something that you put in your motion about that the jury had to believe that
she was lying, that the mother was lying.
I’m not so sure about that. [
the deliberations, they just believed that they could not live with
themselves. It is not proof beyond a
reasonable doubt. [¶] I heard
this testimony. I saw the victim. It was very tough to say what she was lying
about or what she . . . wasn’t lying about because of the recantation
and the fact that she still loves the defendant . . . . [¶]
testimony, even though the jury didn’t come back with a use or a
kidnapping, she never denied that there was a gun in the car in the pocket part
of the driver’s door, which gun had been shown to her. [¶]
All she kept saying was that[] he never pointed it at me. They could have easily come back with a use
on that because of the way the weapon was displayed. They just chose not to. So I do believe that there was something to
that charge. And I don’t believe
that––I do think it was a proof beyond a reasonable doubt
situation and a give and take in deliberations.
[¶] But she never recanted about the fact that the gun was present at the
time the alleged kidnapping occurred.â€
(Italics added.) Then, after
defense counsel objected to “the considerations of any of the unproven priorsâ€
and to any consideration that defendant was found to be in possession of a
firearm as basis for denying the Romero motion,
the trial court said it could look at defendant’s entire rap sheet, “
facts of this case certainly as I heard them. And he was convicted of possession of a
weapon. There was a weapon involved,
obviously.†(Italics added.)
Focusing on
the emphasized comments out of context, defendant argues that the trial court
relied “on its own beliefs about the weight of the evidence,†ignoring the
jury’s acquittal of defendant of the kidnapping, assault with a deadly weapon,
and criminal threats charges. The
comments, however, do not support defendant’s argument when placed in
context. Rather, defendant asserted that
the acquittals showed that the jury believed that Nunez was lying. The trial court responded by pointing out,
correctly, that the acquittals merely established that the People had not met
its burden of proving those offenses beyond a reasonable doubt. (See, e.g., In re Coley (2012) 55 Cal.4th 524, 554 [“a jury verdict acquitting
a defendant of a charged offense does not
constitute a finding that the defendant is factually innocent of the
offense or establish that any or all of the specific elements of the offense
are not trueâ€]; People v. Towne (2008)
44 Cal.4th 63, 85-86 [trial courts have broad discretion to consider relevant
evidence during sentencing, and “[n]othing in the applicable statute or rules
suggests that a trial court must ignore evidence related to the offense of
which the defendant was convicted, merely because that evidence did not convince
a jury that the defendant was guilty beyond a reasonable doubt of related
offensesâ€].) The acquittals thus were
not the equivalent of a finding that Nunez lied, and the trial court was
entitled to consider any relevant evidence in its sentencing determination.
The final
reason defendant asserts for reversing the trial court’s ruling on the
the court made about the charges against him.
The court said that had the jury, as to count 1 for a violation of section
273.5, found “the use†true, defendant’s conviction of corporal injury to a
cohabitant would have been a violent felony under section 667.5. Defendant was not, however, charged with use
of a firearm in connection with that count, and therefore in no event could the
section 273.5 offense in count 1 have been a violent felony.
The trial court also said that the
jury easily could have found the weapons-use allegation true in connection with
count 2 for kidnapping. Defendant takes
issue with this comment because Nunez, at trial, recanted prior statements she
made about defendant kidnapping her. The
trial court thus “illogically†and “impermissibly†assumed that defendant used
a gun to kidnap Nunez although the jury acquitted defendant of kidnapping. The illogic in the trial court’s statement,
according to defendant, is the assumption that defendant could have found the
gun-use enhancement true but acquitted him of kidnapping.
Defendant reads too much into these
comments. By commenting that there was
evidence to support gun-use allegations, the trial court was simply
underscoring its basic point that defendant’s behavior was violent. True, he was not found guilty of any gun-use
enhancement. But there was evidence he
displayed a gun during the underlying events, and the jury found him guilty of
being a felon in possession of a gun.
This could, in the trial court’s discretion, speak to defendant’s
possible penchant for violence. And even
if the trial court mistakenly believed a gun-use enhancement was alleged in
connection with count 1, that mistaken belief would be insufficient to render
the court’s ruling on the Romero motion
an abuse of discretion.
DISPOSITION
The judgment is affirmed.
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
ALDRICH,
J.
We concur:
CROSKEY,
Acting P. J.
KITCHING,
J.
13 Cal.4th 497 (Romero).
a lengthy review of the facts is unnecessary to the issues on appeal, we state
them in brief.
