Filed 6/17/26 P. v. Rodriguez CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E084778

v. (Super.Ct.No. FWV23004442)

MOSES RODRIGUEZ, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino County. Ingrid Adamson

Uhler, Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief

Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed in part, reversed in part, and

remanded with instructions.

Susan S. Baugess, under appointment by the Court of Appeal, for Defendant and

Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney

General, Charles C. Ragland, Assistant Attorney General, Eric A. Swenson and Junichi P.

Semitsu, Deputy Attorneys General, for Plaintiff and Respondent.

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 A jury convicted defendant and appellant Moses Rodriguez of assault with a

deadly weapon, along with two misdemeanors. On appeal, he argues (1) the evidence

was insufficient to support the assault conviction, and (2) the trial court miscalculated his

custody credits. The People concede Rodriguez’s credits were miscalculated. We find

ample evidence supported the jury’s verdict on the assault charge. We agree with the

parties that a limited remand is required for Rodriguez’s custody credits to be

recalculated.

I. FACTS

On the evening of December 21, 2023, Rodriguez crawled under a recreational

vehicle (RV) parked outside of a residence. Armed with a reciprocating power saw,

Rodriguez attempted to steal the catalytic converter. Rodriguez was assisted in the theft

by another person, known as “Filthy,” who was serving as getaway driver.

The owner of the RV (victim) was inside, heard a suspicious noise, and went

outside to investigate armed with a pistol that had an attached flashlight. When he got

outside, he heard noise coming from under the RV, and he saw an unfamiliar Honda

Civic parked across the street with its engine running and its brake lights on. He looked

under the RV by getting down onto his stomach, extending the pistol partially under the

vehicle, and turning on the light. He testified at trial: “To my surprise, I found somebody

under there . . . I couldn’t see anything but their face. I just found somebody under

there.” He identified the person he saw as Rodriguez. The person was about five or six

feet away.

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 The victim asked Rodriguez what he was doing. Rodriguez responded with an

inarticulate yell, then turned on the power saw and swung it at the victim, coming within

about three feet of him. The victim backed off, standing up and taking several steps

back. He saw Rodriguez trying to get out from underneath the RV, using the power saw

to “clear a path, motioning back and forth.” The victim told Rodriguez not to get out

from under the RV, and told him that police were on their way. Rodriguez did not

comply, and instead got out from under the RV and stood up. The victim observed

Rodriguez had the power saw in his right hand and the catalytic converter in his left.

At this point, Rodriguez and the victim were standing about 10 feet from one

another. The victim “continued to tell [Rodriguez] to stop; don’t advance,” and said

again that police had been called. He saw Rodriguez look over at the Civic. He was not

impeding Rodriguez’s path in that direction. Instead of moving toward the car, however,

Rodriguez “focused his attention” back on the victim. Rodriguez took several steps

towards the victim, lifting the power saw to about face level, pointing it at him, and

powering it on. The victim said that at that moment, the flashlight on the gun was on, but

he was pointing it toward the ground. The victim took several steps back and told

Rodriguez to stop or he would shoot him: “So at that point, I have a better understanding

of what’s going on, of his intentions, and I gave him a warning. I looked him in the eyes.

He looked me in the eyes, and I told him – I said, ‘Don’t. I’m going to shoot you.’”

Rodriguez did not stop. The victim raised his gun and fired four shots at Rodriguez while

still backing away. After the fourth shot, Rodriguez stopped advancing, backed off a few

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steps, dropped the saw and the catalytic converter, and appeared to check himself for

injuries. Rodriguez had been struck at least once, in the shoulder. Rodriguez then ran

away; the victim did not follow. After Rodriguez fled on foot, the Civic drove away.

At trial, an eyewitness confirmed seeing that Rodriguez was advancing with the

power saw pointed at victim when shots were fired. The witness heard the victim

ordering Rodriguez not to move, and it looked like Rodriguez was “going to attack” the

victim. A surveillance video showed the victim moving backwards as he was shooting.

Shortly after his arrest, Rodriguez talked to Filthy on the phone from jail. Filthy

asked Rodriguez why he ran at the victim. Rodriguez said he was “confused” and

thought he was running towards Filthy’s car.

Rodriguez was tried and convicted on three counts: (1) assault with a deadly
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weapon (Pen. Code , § 245, subd. (a)(1), count 1); (2) petty theft (§ 484, subd. (a), count

2), and vandalism (§ 594, subd. (b)(2)(A), count 3). The jury found true that Rodriguez

had a prior conviction that was alleged both as a strike (§§ 667, subds. (b)-(i), 1170.12,

subds. (a)-(d)) and as a prior serious felony (§ 667, subd. (a)(1)).

The probation officer recommended that Rodriguez be sentenced to county jail for

365 days for the two misdemeanors, plus a prison sentence of 8 years for count 1, plus

five years for the prior serious felony conviction, “with credit for time served, a matter of

one hundred sixty-seven (167) days, [eighty-four (84) actual days, plus eighty-three (83)

conduct days], conduct credits to be computed pursuant to [Penal Code section 4019].”

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Undesignated statutory references are to the Penal Code.

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Rodriguez served 266 days in custody between his arrest and his sentencing. Assuming

good conduct, this suggests Rodriguez’s presentence custody credits would be 266 actual

days plus 266 days conduct credit under section 4019, for a total of 532. Thus, the

probation officer’s recommendation appears to have been computed based on the

assumption that a 365-day sentence would be imposed for the two misdemeanors and

satisfied entirely by time served, leaving a remainder of 167 days of credits towards a

sentence for count one and the prison prior enhancement.

The trial court sentenced Rodriguez to eight years for count 1 as recommended—

the aggravated term of four years, doubled by the strike finding. The court exercised its

discretion to strike the prior serious felony enhancement. The court repeated the

probation report’s recommendation that Rodriguez was entitled to custody credits of “84

actual, 83 conduct for a total of 167 days.” It departed from the probation report’s

recommendation, however, when it then sentenced Rodriguez on the two misdemeanors:

“As to Count 2, a violation of 484 of the Penal Code that he was found guilty thereof, I’m

imposing 83—actually, 84 actual days. Credit for 84 actual days served. For a violation

of 594(b)(1)(a) of the Penal Code as a misdemeanor, I’m going to impose 83 actual days,
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credit for 83 actual days served.” The court did not specify whether these sentences

were to be served concurrently or consecutively to count 1 or to one another. And it did

not adjust the calculation of Rodriguez’s remaining custody credits to reflect that it was

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The trial court did not discuss on the record why it departed from the 365-day
sentence recommended by the probation officer.

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imposing less than the 365-day sentence for the misdemeanor counts underlying the

probation report’s recommendation regarding custody credits.

II. DISCUSSION

A. Sufficiency of the Evidence

Rodriguez argues there is insufficient evidence to support his assault with a deadly

weapon conviction. His theory is that there is no substantial evidence that he acted

willfully, emphasizing his statements to Filthy that he was confused and thought he was

moving toward the getaway car, not the victim. We find the evidence amply supports the

jury’s verdict.

The elements of assault include the requirement that the defendant acted willfully.

(See People v. Williams (2001) 26 Cal.4th 779, 788 [“[A] defendant guilty of assault

must be aware of the facts that would lead a reasonable person to realize that a battery

would directly, naturally and probably result from his conduct”].) “He may not be

convicted based on facts he did not know but should have known.” (Ibid.)

On a challenge to the sufficiency of the evidence, we review for substantial

evidence, examining “the whole record to determine whether any rational trier of fact

could have found the essential elements of the crime . . . beyond a reasonable doubt,” and

ask whether that evidence is “reasonable, credible, and of solid value.” (People v.

Zamudio (2008) 43 Cal.4th 327, 357.) “In applying this test, we review the evidence in

the light most favorable to the prosecution and presume in support of the judgment the

existence of every fact the jury could reasonably have deduced from the evidence.”

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(Ibid.) “‘Conflicts and even testimony [that] is subject to justifiable suspicion do not

justify the reversal of a judgment,’” and we “‘resolve neither credibility issues nor

evidentiary conflicts.’” (Ibid.)

The evidence met this standard. According to the victim, after Rodriguez crawled

out from under the RV and stood up, he paused, looked over at the getaway car, and then

focused back on the victim, looking him in the eyes as he started towards him. It was

reasonable for the jury to infer from this testimony that Rodriguez knew very well he was

moving towards the victim, not the getaway car, regardless of what he told Filthy. In the

same vein, Rodriguez may well have been startled and blinded when the victim shined a

light in his eyes while he was under the RV. It was nevertheless reasonable for the jury

to infer from the circumstances that Rodriguez knew he was swinging the saw at a person

holding that light, even if he could not see that person. As to these matters, the jury was

able to evaluate the credibility of the testimony of the victim, who Rodriguez’s attorney

cross-examined. The jury also evaluated the testimony of a witness who testified that he

saw the victim backing up and ordering Rodriguez not to move while Rodriguez was

stepping toward him holding the saw and “going to attack him.” Thus, Rodriguez has

demonstrated no appropriate basis for us to disturb the jury’s verdict on the assault

charge.

B. Sentencing

The parties agree, as do we, that a limited remand is required to address sentencing

issues arising from the trial court’s failure to specify whether it was imposing consecutive

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or concurrent sentences for the three conviction offenses, and its failure to recalculate

Rodriguez’s custody credits after departing from the probation report’s recommended

sentence.

The trial court’s oral pronouncement of judgment did not specify whether the

sentences for the three counts were to run concurrently or consecutively with respect to

one another. This means that by default they all run concurrently. (§ 669, subd. (b);

People v. Downey (2000) 82 Cal.App.4th 899, 915.) Rodriguez served 266 days in

custody between his arrest and his sentencing, and he is entitled to presentence credit for

those actual days served, plus conduct credits under section 4019. The 167 total days of

presentence credits the court applied toward the count 1 sentence at Rodriguez’s initial

sentencing was a miscalculation, apparently arising from its departure from the probation

officer’s recommended sentences for the misdemeanor counts. The court needs to

recalculate Rodriguez’s credits based on the actual sentences imposed for counts 2 and 3,

so that the correct remainder can be applied toward the count 1 sentence.

We remand the case to the trial court for the limited purpose of addressing these

sentencing issues.

III. DISPOSITION

Rodriguez’s sentence is vacated, and the case is remanded to the trial court for the

limited purpose of reimposing the sentence with the following corrections:

(1) designating expressly that the sentences for all three counts run concurrently to each

other; (2) recalculating Rodriguez’s presentence custody credits accordingly; and (3)

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issuing an amended sentencing minute order and abstract of judgment. In addition, the

trial court shall forward the amended minute order and abstract of judgment to the

California Department of Corrections and Rehabilitation. In all other respects, the

judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAPHAEL
J.

We concur:

RAMIREZ
P. J.

LEE
J.

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