People v. Rodriguez, B194159 (Cal. App. 12/21/2007)
| Decision Date | 21 December 2007 |
| Docket Number | B194159 |
| Court | California Court of Appeals Court of Appeals |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. JESSIE RODRIGUEZ, Defendant and Appellant. |
Appeal from a judgment of the Superior Court of Los Angeles County, No. BA295740, Robert J. Perry, Judge. Affirmed.
Stephen Temko, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson and Juliet H. Swoboda, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found defendant Jessie Rodriguez guilty of the second degree murder of Cynthia Portillo in violation of Penal Code section 187, subdivision (a),1 and the attempted murder of Manuel Penaloza in violation of sections 664 and 187, subdivision (a). The jury also found that defendant personally and intentionally discharged a handgun in connection with both offenses (§ 12022.53, subd. (d)) and that he committed the offenses for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). For the murder conviction, defendant received a prison term of 15 years to life, plus 25 years for the firearm use enhancement with a 15-year minimum parole eligibility due to the gang enhancement. Defendant received a consecutive sentence for the attempted murder, consisting of the upper term of 9 years, plus 25 years for the firearm enhancement and 10 years for the gang enhancement.
In his timely appeal, defendant contends (1) his written confession was admitted in violation of the Fifth Amendment privilege against self-incrimination and the related protections afforded to defendants under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda) and (2) imposition of his upper term sentence for attempted murder violated his Sixth Amendment jury trial right to have a jury finding on the aggravating factors pursuant to Cunningham v. California (2007) 549 U.S. ___, ___ (Cunningham) and Blakely v. Washington (2004) 542 U.S. 296, 301 (Blakely). We affirm.
Defendant's claims do not directly implicate the facts of the underlying offenses. The necessary procedural background and facts adduced during the suppression motion and in connection with sentencing will be set forth as part of our discussion of defendant's appellate claims.
On February 23, 2005, at approximately 6:00 p.m., Miguel Ruelas was working at Gabanzo Park in Los Angeles. He saw the victims, boyfriend and girlfriend Manuel Penaloza and Cynthia Portillo, walking on the sidewalk. A brown, older model minivan slowed and approached them. Someone in the van asked the victims, "Where are you from"? Shots were fired, and the van drove off. When Ruelas approached the victims, Penaloza, who had been wounded, asked Ruelas to help his girlfriend, who was lying on the ground. Portillo had suffered a fatal gunshot wound to her head. Ruelas called the 9-1-1 operator for assistance and gave aid to Portillo.
Penaloza testified that he and Portillo had been walking to the market at the time of the shooting. When the van's passenger asked "where he was from," Penaloza understood it as a gang challenge—a demand to know what gang Penaloza was affiliated with. Penaloza truthfully replied that he was from the Drifters gang. He saw two persons in the van, the driver and a person in the passenger seat. The shots were fired immediately after Penaloza identified himself. He was wounded in the shoulder. When he saw that his girlfriend had been shot in the head, Penaloza panicked and fled. He went to a hospital where he was treated for his gunshot wound. The bullet was not removed from his lung.
Penaloza identified Richard Powell from a photograph. Powell was an "old friend" Penaloza knew as "Away." He also identified the van from a photograph. At trial, Penaloza said it was too dark to identify the van's driver and passenger, except as being males and less than 30 years old. He testified that he could not remember telling a detective that the shooter was one of two persons he picked out of a photographic lineup. Penaloza would not voluntarily testify in this case; he had been subpoenaed and forced to appear.
Officer Carlos Langarica of the Los Angeles Police Department testified that at 8:30 p.m., he saw a brown van driving in Highland Park. By that time, he had received reports of the Portillo/Penaloza drive-by shooting and another such shooting that night.2 As the van matched the description of the shooter's vehicle, the officer followed in his patrol car. He saw a driver and passenger. The van stopped next to a pickup truck, and the van's driver shouted, "Where you from?" to the occupants of the pickup truck. Officer Langarica activated the patrol car's lights and stopped the van. He saw the van's passenger lean forward as if he were trying to hide something under his seat. Angel Gomez was the driver; Richard Powell was the passenger. Two fully loaded handguns were recovered from the van, a .22 caliber revolver and a .25 caliber semi-automatic. Ammunition for those weapons was also recovered, along with an expended cartridge case and a leather glove. A live bullet was found in Powell's pocket. Neither gun was registered to Gomez, Powell, or defendant.
Detective Luis Rivera testified that no expended cartridge cases were found at the scene of the Portillo/Penaloza shooting, indicating that the weapon fired was a revolver. The detective interviewed Gomez and Powell after the shooting and identified defendant as suspect, based on his gang moniker of "Husky." Detective Rivera obtained a photograph of defendant and placed it in a six-pack photographic lineup, which he showed to Penaloza, who was very uncooperative. He pointed to two photographs—one of them being defendant's—and said,
Gomez had an "HLP" tattoo behind his left ear. Defendant had the same kind of tattoo on his arm.
Ami Adams, a police department forensic fingerprint analyst, testified that she found no fingerprints on the .22 caliber revolver, the .25 caliber semi-automatic, or the ammunition. If the shooter had worn a glove, no prints would have been left on the gun. Stella Chu, a police department criminalist, testified that the bullet that killed Portillo could have been fired from the .22 caliber revolver, but not the .25 caliber semi-automatic.
Detective Rivera and his partner Jose Carrillo arrested defendant on March 28, 2005, and took him to the police station, picking up some lunch for defendant on the way. Defendant was advised of his rights and then interviewed. The interview was videotaped.3 When defendant asked to speak to an attorney, the detectives stopped the interview. Defendant was transported to the central station for fingerprinting and photographing. He was then returned to the local station, while the detectives completed their reports. After doing so, they took defendant to a juvenile facility.
Shortly after their arrival, while in the intake area of the juvenile facility, defendant asked Detective Rivera, "what's going to happen?" The detective replied that the case was going to be presented to the prosecutor's office. Defendant then requested the detective's business card, explaining that he might want "to talk" to the detective. In response, Detective Rivera explained that because defendant had invoked his right to counsel, the detective could not speak to him until defendant had spoken to an attorney, unless defendant "changed his mind" about exercising his right to counsel. Defendant replied that he wanted to talk to the detective.
Detective Rivera requested an interview room and a tape recorder, but no such device was available. Once inside the interview room, defendant narrated what happened during the shooting incident. At the detective's request, defendant wrote his own statement, which was admitted in evidence. In that statement, defendant related how Gomez and Powell picked him up and got some beer. They dropped off Powell in front of a friend's house and parked nearby. Gomez saw a male he believed to be a member of the Drifters gang and told defendant to "hit him up."4 As they pulled the van alongside the male, a female who had been tying her shoe walked up to the male. Defendant asked the male "where he was from," and when the latter identified himself as being "with Drifters," Gomez urged defendant to "shoot him." Defendant fired a .22 caliber handgun three times. As part of defendant's statement, there was a map of the scene drawn by Detective Rivera, which defendant annotated to explain the circumstances of the shooting. The detective also read from his notes of defendant's oral statement during the second interview, in which defendant said that Gomez threatened to hit defendant with his handgun if defendant refused to shoot at Penaloza. Detective Rivera also explained how, after defendant was arrested, the detective and his partner transported defendant to a juvenile facility. Defendant asked the detective for a business card. Detective Rivera told defendant that the case against defendant would be presented to the prosecutor the next day.
Officer Robert Morales testified as a gang expert. The Highland Park gang has approximately 150 members. Its primary activities consist of committing a variety of crimes, including murders, robberies, and narcotics sales. "HLP" is one of the gang's identifying symbols. Defendant is an active member of the gang with the moniker, "Husky." So are Gomez and Powell. The former's moniker is "Vamps"; the latter's is "Away." The HLP tattoo signifies allegiance to the gang, as well as having committed crimes for the gang. The Portillo/Penaloza shootings occurred in Highland Park gang territory and were committed to benefit the Highland Park gang.
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