People v. Rodriguez

• Citation: 66 Cal.App.5th 749,281 Cal.Rptr.3d 383
• Decision Date: 19 July 2021
• Docket Number: C087974
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Jesus Alberto RODRIGUEZ, Defendant and Appellant.

66 Cal.App.5th 749

281 Cal.Rptr.3d 383

The PEOPLE, Plaintiff and Respondent,

v.Jesus Alberto RODRIGUEZ, Defendant and Appellant.

C087974

Court of Appeal, Third District, California.

Filed July 19, 2021

Certified for Partial Publication.^*

Paul Couenhoven, Santa Clara, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris and Xavier Becerra, Attorneys General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez, Catherine Tennant Nieto, Deputy Attorney General, for Plaintiff and Respondent.

MURRAY, J.

Defendant and his codefendant Ralph Gamboa went on a two-day crime spree in Stockton. They robbed and attempted to rob numerous victims, and when met with resistance or perceived noncompliance, they resorted to violence. In separate incidents on the same day, defendant shot Victor D.R. in the head but he survived, Gamboa later shot and killed Luis Z., and defendant later shot and killed Javier R.¹

A jury found defendant guilty of all 19 counts charged and found true 11 firearm enhancements and two robbery-murder special-circumstances allegations. The trial court sentenced defendant to an aggregate term of 178 years eight months to life plus two consecutive terms of life without the possibility of parole. On appeal, defendant asserts: (1) the evidence was legally insufficient to support the special circumstances finding as to Luis because he was not the actual killer and the evidence was insufficient to prove that he had the intent to kill Luis or was a major participant who acted with reckless indifference to human life; (2) following the enactment of Senate Bill No. 1437, his conviction for Luis's murder must be reversed; (3) as related to Javier R., the evidence was insufficient to prove defendant attempted to rob Javier R. or that it was defendant who shot and killed him and therefore the robbery-murder special circumstances, an attempted robbery conviction, and a firearm enhancement must be struck; (4) Penal Code section 654² barred separate punishment for counts 1 (murder of Luis) and count 2 (attempted robbery of Luis), and for count 6 (attempted murder of Victor), count 7 (attempted robbery of Victor), and count 8 (mayhem involving Victor); (5) the trial court's imposition of a $1,000 administrative fee under section 1202.4, subdivision (l ), was unauthorized because defendant was sentenced to prison; and (6) the parole revocation fine must be struck because defendant was sentenced to life without the possibility of parole.

We shall modify the judgment to (1) stay execution of the sentence imposed on count 8, mayhem, pursuant to section 654, and (2) impose the $1,000 collection fee pursuant to section 1202.4, subdivision (l ), the trial court did not orally impose. As so modified, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Defendant was charged with multiple counts, two robbery-murder special-circumstance allegations and multiple firearm enhancements related to a two-day crime spree.³ Codefendants Gamboa and Sirenia Alcauter were charged in the same information. Defendant was 16 years old at the time of these events. After a transfer hearing pursuant to Proposition 57, the "Public Safety and Rehabilitation Act of 2016," defendant was found unfit for juvenile court.

Events Occurring on June 11, 2015

Attempted Robbery of C.T.⁴

Just before 3:00 p.m., witness R.G. was at a store on Charter Way in Stockton cashing a check.⁵ When she returned to her car, she saw a robbery taking place. She saw a man walk towards the far side of California Street and towards a parked car. He pulled out a gun and pointed it at people inside the car. R.G. took a picture of the robbery and then called 911. The 911 call was received at 2:56 p.m. In the call, R.G. described the person attempting to commit the robbery as a Hispanic male approximately 19 or 20 years old wearing a white shirt and black jeans.

Robbery of Mario S.

At approximately 3:00 p.m., Mario S. was parked on California Street where he had driven with his father. Mario's father went into a salon while Mario stayed in the car. Mario noticed what appeared to be a son arguing with his father, or a younger guy arguing with an older guy. The younger person was outside of a car, and the older person was in the car.⁶ Mario resumed texting on his phone. Then someone came up to the driver's side of Mario's car and told Mario to give him his phone. The person pulled out a silver revolver, pointed it at the side of Mario's head, and repeated, " ‘Give me your phone.’ " He also told Mario, " ‘Do you think I'm playing?’ " Mario testified that the person looked "a little younger than I was, and I think probably around 16 years old." Mario gave the person his phone. The person opened the rear driver's-side door of Mario's car, grabbed something, and then he took off. As he was leaving, Mario's father returned and yelled at the person who "dropped the stuff and took off." Mario's father called 911. The call was received at 3:02 p.m.

Attempted Robbery and Attempted Murder of Victor

Victor was walking near the corner of Grant Street and First Street, talking to his mother on his cell phone. Victor passed defendant, who was wearing shorts and a white T-shirt. After Victor passed him, defendant said, " ‘Hey, let me see that phone.’ " Victor turned around and "noticed a revolver probably a foot or two away from [his] face" being held by defendant. The revolver was silver. Victor shook his head and continued to walk. He looked over his shoulder, heard a loud pop, and felt something "really, really terrible," pain on the right side of his head near the corner of his eye. Victor called 911. He described the perpetrator as Hispanic and wearing a white shirt and jean shorts. As of trial, Victor could see color but could not distinguish shapes with his right eye. Victor's 911 call was received at 3:21 p.m.

Robbery of Javier M.

At approximately 5:30 p.m., Javier M. drove a friend to Canelo's Market. His friend got out of the car while Javier M. waited in the car. Javier saw defendant in his rearview mirror walk across the parking lot towards where his car was parked. Defendant came to Javier M.’s driver's window and asked to borrow his cell phone. Javier M. refused, saying he had to leave. Defendant then pulled out a gun, pointed it at Javier M., and said, " ‘Do you want to die?’ " The gun was a silver revolver. Javier M. gave defendant his cell phone. Defendant then demanded money and opened the car door. Defendant took a bag that was in the driver's-side door that Javier M. used for coins. Defendant stepped back, and Javier M. took the opportunity to get out of the car and go into the store.

Attempted Robbery and Murder of Luis

At approximately 6:00 p.m., Gilberto V. and Gerardo V. were with their boss, Luis, in the back area of Billy Jack's Tire Shop. Gilberto heard people arguing in Spanish, and so he went to the window. He saw a Hispanic man with a handgun. The man, who was wearing a white shirt, came into the back area and said, " ‘Give me money, motherfuckers.’ " Gerardo identified Gamboa at trial as the man with the gun.⁷ He thought the gun was a gray revolver. Gerardo said he did not have any money. Luis told Gamboa to hold on, reached to his pocket to get money, but, before he could give Gamboa money, Gamboa shot him. Gamboa immediately left and went to the car in which he arrived. He got into the passenger side of the car, and, as soon as he got in, the car drove off.

Luis suffered a close-range fatal gunshot wound. The pathologist testified that the bullet recovered from his body was .356-caliber or nine-millimeter, also consistent with a .38-caliber.

Stockton Police Officer Christopher Pulliam obtained surveillance video from the business across the street from the tire shop. In the video, a male wearing a white shirt can be seen exiting the driver's door of a parked car. A second male can be seen getting out of the passenger side of the car, walking around the car, and getting into the driver's side. The person who got out of the driver's side was off screen for approximately 48 seconds until he ran back to the car and got in the passenger door before the car drove off.

Robbery of Taco Truck Patrons

Between 8:00 and 8:30 p.m., Saul R., his brother Jesus R., and Saul's friend Fernando G. were at a taco truck. They were seated at a table in an area behind the taco truck when a car pulled up and Gamboa approached them. Gamboa pointed a gun at them and demanded all the money they had. Defendant participated in the robbery as well. He, too, was armed with a gun and he pointed it at Jesus and demanded money. Saul stood up, and Gamboa put the gun to Saul's head and told him to sit back down. Gamboa took $900 from Saul, as well as his wallet with all his papers. Gamboa and defendant also took an iPhone and $100 from Jesus and two phones from Fernando. Defendant and Gamboa walked to a car that was waiting for them and the car drove off.

Robbery of Martha M.

Martha M. got out of class between 9:10 and 9:15 p.m. and went to the Sufi Market near the corner of Market and E Street. She got out of her car and was locking her door when defendant approached her and asked her if she had a phone he could use. Martha went to pull her phone out when she felt defendant trying to yank her necklaces off. Martha struggled and held onto her necklaces, and defendant told her to let go. She then saw that defendant had a black gun, which he "basically pointed right at [her] head," and she let go of her necklaces. Defendant yanked her chains and they broke, he took them, and he walked away. He told Martha, " ‘You think I'm playing,’ " which she took as a threat.

The prosecution played for the jury People's exhibit 114, a surveillance video taken outside of Sufi Market. Martha's car can be seen parking across the street from the market.⁸ Martha identified defendant in the video and testified that he was the person who robbed her. Defendant is wearing a white shirt, and dark...