People v. Rodriguez, F052051 (Cal. App. 4/23/2008)
| Decision Date | 23 April 2008 |
| Docket Number | F052051 |
| Court | California Court of Appeals Court of Appeals |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. JORGE RODRIGUEZ, Defendant and Appellant |
Appeal from a judgment of the Superior Court of Tulare County, VCF163000B, Patrick O'Hara, Judge.
S. Lynne Klein, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lloyd G. Carter and Louis M. Vasquez, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Jorge Rodriguez and two codefendants were charged with multiple felony counts arising from a vandalism incident and a drive-by shooting of someone believed to be an associate of a rival gang. Appellant pleaded no contest pursuant to a negotiated disposition to count I, attempted murder, count VIII, vandalism, and count IX, possession of a firearm, and admitted the gang enhancements, for a term of 19 years 8 months. Appellant then moved to withdraw his pleas and admissions and claimed his codefendants manipulated him to enter the pleas. The court denied the motion and imposed the sentence. On appeal, appellant contends his pleas and admissions were not knowing, intelligent, and/or voluntary, but for reasons different from those he raised in his motion to withdraw his pleas. He asserts he was not advised of the meaning of his "no contest" pleas or about the elements of the offenses and enhancements. He also contends the court failed to obtain the appropriate waiver to impose the upper term in violation of Blakely v. Washington (2004) 542 U.S. 296 (Blakely) and Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham). Finally, he asserts the court failed to find a factual basis for his pleas. We will reverse and remand for resentencing only.
On the afternoon of April 18, 2006, K.D. left her residence in Visalia to go shopping.1 Around 2:00 p.m., about an hour later, K.D. returned and saw two Hispanic men in the alley behind her house. One man, later identified as codefendant Ramiro Moran, appeared to act as a lookout while the other man, later identified as codefendant Paul Molina, was standing by the garage. Molina was wearing a blue jersey and writing Sureno graffiti with a can of blue spray paint on the garage and fence. As K.D. approached, Moran called out to Molina, and they walked toward a white Thunderbird which had been parked nearby. They met a third individual who was standing outside the car and wearing a baseball cap. Molina and Moran got into the car, and the third individual entered the driver's side of the vehicle and drove away. K.D. wrote down the vehicle's license plate number and contacted the police department.
Around 2:55 p.m., Andrew "Smiley" Morales was riding his bicycle at Lincoln Oval Park in Visalia. He left his bicycle on the grass and walked across the street toward a market. As he walked to the market, witnesses saw a white Thunderbird maneuver between two other cars so that there was a direct line between the vehicle's passenger side and Morales. The witnesses noticed the white car stop and then they heard two or three gunshots. Morales fell to the ground and the white vehicle sped away from the area.
The witnesses thought the gunshots were fired from the front passenger side of the white vehicle. One witness saw two Hispanic males in the front seats of the car, with thin builds and shaved heads, and the driver was wearing a ball cap. This witness did not notice anyone in the vehicle's back seats.
Morales suffered a gunshot wound in the left side of his back, and the bullet was lodged in his body. The police found a . 25-caliber bullet embedded in the wall of the market building toward which Morales had been walking, and did not find any spent casings in the area. There was a red bandana tied around Morales's bicycle.
Around 3:00 p.m., police officers responded to the residence in Visalia where codefendant Molina lived with his parents. A white 1994 Thunderbird registered to appellant Jorge Rodriguez was parked nearby. The back windows were tinted. There was a can of blue spray paint in the car. The police found a spent . 25-caliber shell casing between the front passenger seat and the front passenger door.
The police located appellant, codefendant Molina, codefendant Moran, and Daniel Romo at the Molina residence.2 Molina's father said that Molina and the others had arrived about 10 minutes earlier and went into Molina's bedroom. The police found a .25-caliber semi-automatic handgun and a box of .25-caliber ammunition hidden in an air vent in Molina's bedroom. The gun was loaded with an eight-round magazine, but only six rounds were in the clip. There was black tape wrapped around the gun. The police found several papers and notebooks in Molina's bedroom which contained the words "187 on a busters," referring to homicide and the derogatory term for Nortenos.
Officer Paul Esquibel interviewed Daniel Romo, who said they had been driving around town in appellant's white Thunderbird. Romo said he was sitting in the left rear seat, appellant was driving, Molina was in the front passenger seat, and Moran was in the right rear passenger seat. Romo said that as they drove by the park, appellant pointed to someone and said, "hey, there's a buster," using the derogatory term for a Norteno. Appellant slowed down the car, and Moran pointed a gun out the right rear passenger window and fired at least two rounds at Morales. Romo saw that Morales was hit. Romo said they drove to Molina's house and hid the gun in an air vent in Molina's bedroom, and the police arrived shortly afterwards.
Detective Randy Lentzner advised appellant of the rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436, and appellant agreed to answer questions. Appellant said he was driving the others around in his white Thunderbird, Molina was in the front passenger seat, Romo was in the left rear seat, and Moran was in the right rear seat. Appellant said that as he drove by the park, he suddenly heard two loud gunshots fired from the right rear passenger side of his car, where Moran was sitting. Appellant knew about the red bandana on the victim's bicycle, believed the victim was a Norteno, and said the shooting was gang-related. Appellant said he kept driving and they went to Molina's house.
One of the shooting witnesses subsequently identified appellant and Molina as the two men sitting in the front seat of the white Thunderbird during the shooting. This witness could not identify Romo or Moran.
On April 20, 2006, a felony complaint was filed in the Superior Court of Tulare County charging appellant and codefendants Molina and Moran with multiple felony counts arising from the drive-by shooting and vandalism incidents. On May 23, 2006, a first amended complaint was filed. On May 26, 2006, Judge O'Hara conducted the joint preliminary hearing, and appellant and codefendants were held to answer.
On June 7, 2006, the information was filed which charged appellant, and codefendants Molina and Moran, with multiple felony counts. We will focus on the counts alleged against appellant.
In count I, appellant and Moran were charged with attempted willful, deliberate, and premeditated murder of Andrew Morales on April 18, 2006 (Pen. Code,3 §§ 664/187), with special allegations as to appellant that a principal discharged a firearm (§ 12022.53, subds. (d), (e)(1)) and the offense was committed for the benefit of, at the direction of, and in association with a criminal street gang with the specific intent to promote, further and assist in criminal conduct by gang members (§ 186.22, subd. (b)(1)(C)).
In count II, appellant and Moran were charged with discharge of a firearm from a vehicle and at a person (§ 12034, subd. (c)), with a special allegation that a principal discharged a firearm (§ 12022.53, subds. (d)(1), (e)) and the gang enhancement. In count IV, appellant was charged with assault with a semi-automatic firearm (§ 245, subd. (b)), with a special allegation for use of a firearm (§ 12022.5, subds. (a), (d)) and the gang enhancement.
In count VIII, appellant, Molina, and Moran were charged with felony vandalism with under $400 in damage, in that they willfully and maliciously defaced with graffiti and other inscribed material and otherwise damaged or destroyed real and personal property, the garage and fence of K.D. (§ 594, subd. (a)), along with the gang enhancement.
On June 9, 2006, appellant and the codefendants appeared together, pleaded not guilty, and denied the special allegations.
On September 21, 2006, Judge O'Hara convened the pretrial hearing, and appellant and the codefendants appeared together. The prosecutor advised the court that there were no dispositions, they had some discussions in chambers, and codefendant Moreno's attorney had made an offer but the prosecutor needed a few days to review it. The prosecutor did not know whether appellant and Molina were "going to make offers," but knew that appellant's attorney wanted "some time to speak to his client." The prosecutor asked to continue the pretrial for one week. The court agreed and said, The prosecutor advised the parties that his office needed to know by the next day as to "any potential offers if they are going to make an offer to the DA's office." The court asked if the attorneys would have the opportunity to talk to their clients. The attorneys for appellant and codefendant Molina thought they could talk to their clients by the next day. The prosecutor was not sure about another continuance "[i]f it is not a package deal" or whether his office "will want to split this case off." The court advised the...
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